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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


In  the  Supreme  Court  of  tlie  United  States 


OCTOBER    TERM,    1016 


Mo.   121 


JOHN  ARMSTRONG  CHALONER,  Plaintiff-in-Enor, 

a  gainst 


THOMAS  T.  SHERMAN,  Defendant-in-Error. 


BRIEF  OF  PLAlNTrFF-IN-ERROR 


John  Armstrong  Chaloner,  pro  se. 


PRESS   or   NATIONAL   PUSLISHINO   CO. 


Copyright 

John  Armstrong  Chaloner 

1916. 


i 


ST^r?.TE("T— INDEX  ^-  ^ 


fj 


I'ACK 

Statement  or  Introdnetion 1-9 

Assi^niiient  of  p]iTors 10-14 

The  Nineteen  INnnts  of  Law  (Statement  of) 14-29 

Epitome 2S-81 

162  Federal  Reporter,  19 ^ .'^,3-40 

The  Parallels 41-72 

I  In  which  the  i-nlings  of  .Indj>e  Geor.i>e  C.  Holt 
of  the  United  States  District  Court  for  the 
Sonthern  District  of  New  York  are  paral- 
leled with  the  riilino's  of  the  United  States 
Oirciiit  Oonrt  of  Appeals.) 

Unparalleled  Assignments 73-79 

Opinion  of  Mayor,  J.,    in    appeal    of    Chaloner 

aji'ainst  Sherman,  Analysis  of S0-13S! 

The  Nineteen    Points    of    Law   (Supported    by 
Aronment  and  Authority)  — 

Point  1   i:;9 

Point  2   140 

Point  3   14S! 

Point  4 149 

Point  5   149 

Point  6   150 

Point  7 l-'O 

Point  8 150 

Point  9   17.'. 

Point  10 --2 

Point  11   .--5 

Point  12 - 2"0 

Point  13  -"1 

Point  14 -^'^ 

I 


PAGE 

Point  15 291 

Point  10 345 

Point  17 345 

Point  18  346 

Point  19  346 

BRIEF  IN  REBUTTAL 

(Replyinii-  to  the  salient  points  in  the  brief  of 
eonnsel  for  defendant-in-error  before  the  Cir- 

cnit  Court  of  Appeals) 350-372 

Reasons  for  Lenoth  of  Brief — 

Unwari-anted   statements  by  counsel   for  de- 
fendant-] n-er-ror  shown  by  excerpts  from  the 

Record 350-353 

The  nraent  necessity  for  the  reform  of  the 

Lunacy  Laws 353-356 

The  corrupt  condition  of  Lunacy  practice  in 

New  York 356-358 

Literary  achievements  of  the  plaintiff-in-error 

during'  the  past  ten  years 357-359 

The  attempts  of  counsel  for  defendant-in-error 

to  misconstrue  the  record 358-360 

The     entire     case     against     plaintiff-in-error 

founded  upon  fraud  and  perjury 361-372 

Discussion  of  the  opening  statement  of  counsel 
for  Defendant-in-Error  that  this  action  has  no 
relation  to  the  property  now  in  the  hands  of 
the  falsely  alleged  Committee,  but  relates 
merely  to  what  was  in  his  hands  before  1904_  372-376 
Illegality  of  the  commitment  of  plaintiff-in- 
error  in  tlie  Society  of  the  New  York  Hos- 
pital in  1S97  (citing  Windsor  vs.  McVeigh, 
93  IT.  S. ;  Simon  vs.  Craft,  182  U.  S. ) ^__  376-377 

II 


I'ACB 

llleiiality  of  the  I^rocecdiuiis  in  1S9II  hcfoi-c  a 
Sliei'iff's  Anvy.  Tlic  ])laiiitilf-in-('i'r()r  was  jut- 
veiited  from  atteiidinii  by  physical  disability 
and  was  not  represented  by  counsel .'ITT-.'ISO 

Fraud  and  perjnry  upon /he  part  of  the  leadinj>- 
petitioner  in  Lunacy,  Winthrop  Astor  (Mian- 
ler,  proved  by  excerpts  from  his  deposition 
de  bene  esse ^ 381-40*i 

POINT  I — Statement  of  counsel  for  defen<hint- 
in-error  that:  "The  Trial  (^ourt,  in  1912,  did 
not    err   in   excluding   evidence   to   show   the 
mental  condition  of  the  plaintiff  at   various 
times,  and  this  adjudication  must  be  taken  un- 
less   shown    to    have    been    rendered    without 
jurisdiction  or  procured  by  extrinsic  fraud""--         403 
The  above  statement  disproved  by  the  law 
and  the  facts  in  the  case  which  show  both 
lack  of  jurisdiction,  and  extrinsic  fi-aud-  403-4(M» 

POINT  II — Statement  by  counsel  for  defendant- 
in-error  that  the  question  of  lurini>-  the  plain- 
tilf-in-error  into  a  foreitin  jurisdiction  in  ISDT 
had    nothinii,-   to   do   witli    the   Proceeding;    in 

1899,  adjudii'inji-  him  incompetent 400-407 

Answered  by  the  following  opinions  handed 

down   in — 

Carpenter  vs.  Spooner, 

Olean   St.   R.   R.   Co.   vs.    Fairmount   (\in- 
struction  Co., 

Wyckoff  vs.  Packard, 

Baker  vs.  Wales, 

La  graves  Case, 

Metcalf  vs.  Clark 407-408 

in 


PAGE 

Also,  answered  by  the  fact  that  the  1899 
Pi'()('eediii<;  jj-rew  out  of  the  1897  Proceed- 

ini>-,  and  was  dependent  upon  it 409-414 

Statement  of  counsel  for  defendant-iu-error  that 
fraudulent  luring  is  permissible  in  the  case  of 
alleged  incompetents,  and  that  there  is  no 
authority  for  attacking  such  decision  collat- 
erally   414-415 

AnsAvered  bv  fact  that  insanity  is  the  least 
known  branch  of  law;  and  the  case  of 
Ch alone r  af/ainst  Sherman  is  an  unprece- 
dented case 416 

Animosity  of  the  ('hauler  family  tOAvards  the 
plaintitf-in-error  shown  by  their  letters  to  him 

immediately  after  his  marriage 417-425 

Letter  from  the  Proprietor  of  the  Hotel  Ken- 
sington, New  York,  to  the  plaintiff-in-error, 
proving  the  infrequency  of  plaintiff-in-error's 
visits  to  New  York__ 427-429 

POINT  III — Statement  of  counsel  for  defen- 
dant-in-error  that  the  residence  of  the  plain- 
tiff-in-error   was    tinallv    determined    bv    the 

New  York  Court 431 

Answered  by  the  fact  that  the  NeA\'  York 
court  never  had  jurisdiction  over  the 
plaintift'-in-error,  because  he  was  lured 
there  in  1897,  and  had  no  opportunity  to 
appear  and  be  heard  at  the  1899  Proceed- 
ing           431 

POINT  lY — Statement  of  counsel  for  defendant- 
in-error  that  though  fraud  he  proved  in  both 


IV 


I'AGE 

the  1S!)7  and  ISDl)  Proceedinos,  yet  that  is  no 

ground  for  collateral  attack 431-432 

Answered  by  discussion  of  the  cases  of — 
Tovey  vs.  Young,  and 

United  States  vs.  Throckmorton 432-439 

Statement  of  counsel  for  defendant-in-error  that 
even  though  the  plaintiff -in-error  was  "fraudu- 
lently lured''  in  1897,  he  was  not  deprived 
thereby    of    exercising    his    rights    in    1899. 

(Citing  Simon  v.  Craft) 440 

Answered  by  the  fact  that  the  plaintiff-in- 
error  was  deprived  of  his  rights  in  1899 
through  i)hysical  incapacity  to  be  present 
and    Avas    unrepresented — as    toas    Mrs, 

Simon — by  a  gaiardian  ad  litem 440 

Simon  vs.  Craft,  Comparison  of  the  case  at  bar 

with   441-443 

Also 5GT-584 

POINT  Y— Statement  of  counsel  for  defendant- 
in-error  that  the  ])laintiff-in-error  was  not  de- 
prived of  his  opportunity  to  be  heard  at  the 
1899  Proceeding,  either  on  account  of  his  resi- 
dence in  "Bloomingdale''  or  through  his  physi- 
cal disability 443-447 

The  above  statement  of  the  counsel  for  the 
defendant-in-error  utterly  refuted  by  the 
testimony  at  the  1899  Proceeding  of  the 
Superintendent  of  "Bloomingdale,"  who 
asserted  on  the  stand  that  the  plaintiff-in- 
error  iras  physically  incapacitated  from 
being  present  and  that  he  had  been  in  bed 
for  at  least  three  weeks  before  the  date  of 
the  1899  ProeeediAg 352 


PAfiE 

Also,  the  plaiiitift'-in-error  was  entirely  un- 
able, at  that  time,  to  eoiniiinnicate  with 
any  counsel  save  throui^h  the  Asylum 
authorities  and  their  supporters 449-450 

This  statement  of  the  ])laintiff-in-error 
proved  by  th(^  fact  that  his  letter  to  the 
Hon.  Micajah  \Yoods,  of  July  3rd,  1897, 
was  not  received  by  said  Woods  for  three 
months  after  it  was  written,  and  its  ef- 
ficacy was  then  destroyed  by  the  machina- 
tions of  the  enemies  of  the  plaintiff-in- 

error 451 

Statement  of  counsel  foi-  defendant-in-error 
that  physical  disal)ility  is  by  no  means  suf- 
ficient to  vitiate  notice,  citin<i-  the  practice  in 
ordinai-y  civil  cases 453 

Answered  by  the  fact  that  a  case  in  lunacy 
is,  in  effect,  a  crimhial  case,  concernini? 
as  it  does  th(^  right  to  his  liberty  and  en- 
joyment and  control  of  liis  property  by 
the  accused 453 

That  Criminal  Procedure  and  Lunacy  Pro- 
cedui-e  are  identical,  from  the  dimmest 
antiquity  of  the  Common  Law,  shown  by 
the  following  excer])ts  from  leading'  Eng- 
lish l)(H-isions,  citing: 

I)e  Pi-aei-ogativa  Regis,  IT  Edw.  11  St.  A.  D. 
1324. 

Lord  Ely's  ( \is(\  1  Kidgw.  Pari.  Ca.  515, 
1 764. 

''Tli(^    Law    of    and    Pi'actice    in    Lunacy," 

Ren  ton,   London,   1X90 456-472 

Disnissioii   of  the  T'nited  States  Constitu- 


VI 


PACE 

tioii,  sliowinj^  that  Ciiiiiinal  Proceedings 
Mild  Lunacy  Proceediiins  are  aiialoinous 
in  nature 478-483 

( 'omparison  of  a  Civil  Case  with  a  Case  in 
Lnnacy,    showing    the    absolute    <lissim- 

ilaritv  between  them 483 

Statement     of     counsel    for    defendant-in-error 

« 

that   opportunity   to   be  heard    is   not  denied 
one  who  is  able  to  retain  and  consult  freely 

with  counsel 484 

Answered  by  the  fact  that  the  plaintiff-in- 
error  could  not  "retain  and  consult 
freely  with  counsel"  as  proved  by  his  ex- 
perience witli  Hon.  David  B.  Hill 485-488 

Also  answered  1)y  the  fact  that  it  was  not 
until  after,  nearly  a  year  after,  the  1890 
Proceedings  were  had  that  the  plaintiff- 
in-error  could  ]iost  any  letter  uncensored 

by  the  Asvluni  authorities 487 

Indictment  of  the  New  York   Bar    by   its 

former  President,  Whitaker 492-496 

Letter  from  Hon.  David  B.  Hill  to  the  ]ilaiu- 

tiff-in-error -         496 

lA^ters   passing   between   Captain   Micajah 

Woods  and  the  plaintiff-in-eror r)02-507 

The  "Committee"  of  the  plaintiff-in-error  was 
represented  in  Virginia  by  Hon.  John  B. 
Moon ;  Captain  Micajah  Woods'  knowledge  of 

this  fact   507-508 

A  fee  of  1250.00  was  paid  by  said  (^iptain 
Woods  to  Hon.  John  B.  Moon  foi-  serving 
as  gnardian  ad  litem  for  plaintiff-in-error 
at   the   Proceedings   in    Louisa    Co.,   Va., 

infra — ^^^ 

VII 


PAGE 

Letters  coucerniiig  notice  given   the  other 
side  of  the  Virginia  Proceedings,  Nov.  6, 

1901   - 514-517 

The  Louisa  ( 'ountv,  Virginia,  Proceedings-  517-527 
Proceedings    of    November    6,    1901,    post- 
poned   by    request    of    representative    of 

other  side 537-538 

Proceedings    of  '  November  G,   1901,   bona  fide, 

correct  and  in  full  force 527-542 

Drs.  Flint  and  Macdonald,  Medical  Examiners- 
in-Lunacv — Their  conduct  in  this  case  and  in 

ft. 

the  Thaw  case  (Opinion  of  Mr.  Justice  Hen- 
dricks)     542-545 

POINT    VI — KStatement    of    counsel  for  defen- 
dant-in-error  that  "The  Law  under  which  the 
1899  Proceedings  were  conducted  is  not  un- 
constitutional   for   lack   of   any    requirement 
that  notice  be  given  to  the  alleged  lunatic/' 
This    Statute    is    unconstitutional  since  it 
omits  any  provision  for  notice  to  the  al- 
leged lunatic   (citing) 
Matter  Georgiana  G.  R.  Wendel,  33  Misc. 

496. 
People    ex    rel    Elizabeth    Ordway    vs.    St. 

Xavier  Asylum,  33  App.  Div.  (N.  Y.). 
Re  W.  H.  Lambert,  55  L.  R.  A.,  etc 548-564 

POINT  VIII— Statement  of  Counsel  for  defen- 
dant-in-error  that  "No  notice  of  the  applica- 
tion for  the  defendant-in-error's  appointment 

in  1901  was  given  but  none  was  required" 564 

This  statement  refuted  by  the  same  cases 
cited  by  counsel  for  defendant-in-error. 

VIII 


PAGE 

Matter  of  Griffin  (5  Abt.  rrac). 
Matter  of  Osborn  (  74  A.  D.). 

Matter  of  Andrews  (192  N.  V. ) 564-507 

Simon  vs.  Craft — Discussion  of  the  case  of 567-584 

Conclusion    585 

CASES    EXCERPTED    OR    GIVEN    IN    EXTENSO 
IN  THE  NINETEEN  POINTS  OF  LAW. 

PAGE 

43  Am.  St.  Rep.  5;n   (Note) 233 

Arrowsmilh  v.  Glc^ason,  120  V.  S.  86,  81) 168 

Baker  v.    Wales,   U   Abb.   331 145 

Bard  well  v.  (/ollins,  20  Am.  St.  Rep.  554 192 

Barnslev,  c.r  parte,  3  Atk.  184 337 

Bethea  v.  McLennon,  29  N.  C.  523 231,  270 

Blackstone,  "Of  Guardian  and  Ward" 332,346 

Bolton  V.  Jacks,  6  Rob.  198 165 

Board  of  Supervisors  v.  Budlonsi',  51  Barb.  493  178 

Board  of  Education  v.  Bakerwell,  122  111.  348__  181 

Bryant,  in  re  William  M.,  3  Mackey  489 232 

Brown   v.    Board    of   Levee   Commissioners,   50 

Miss.  468 230 

Buswell  on  Insanitv,  Sec.  55 240 

Butchers  Union  Co.  v.   Crescent  City  Co.,  Ill 

U.  S.,  757 289 

Burdick  v.  People  of  Illinois,  149  111.  600 188 

Carpenter  v.  Spooner,  2  Sandf.  717 140 

Case  of  Mays,  10  Pa.  Co.  Ct.  Rep.  293 218 

Chapman  v.  Phenix  N.  Bank,  85  N.  Y.  437 156 

Chenuno  (^mal  Bank  v.  Judson,  8  N.  Y.  254 164 

rx 


PAGE 

(niase  V.  Hathaway,  U  Mass.  221 199 

Cliauviii  V.  A^iliton,  Const.  Law,  5tli  Div.  Rev. 

St 194 

Coiiiiiumwealth  v.  Haskell,  2  Brewst.  491 179 

(Vmiiuoii wealth  v.  Kii-kbride,  2  Brewst.  400 234 

(\)iikey  hv  (\)ok  v.  Kiniiiiiaii,  24  Pick.  115 166, 181 

Craniner,  ex  ])ai-te,  12  Ves.  Jr.,  455__- 248,270 

])eii  ex  Dciu  (»!'  Aimer  v.  ("lark,  18  Am.  Dee.  417         337 

Dowell  V.  .laeks,  53  N.  (\  387 271 

Dovle,  Petitioner,  16  R.  I.  537 184 

Eslava  v.  Lei)etre,  21  Ala.  504 179 

Evans,  Committee,  vs.  Johnson,  23  L.  R.  A.  737  208 
Executors   of   Wm.    Hill   vs.    Edward   Day,   34 

N.  J.   Eq.   150 339 

Ferunson  v.  (M-awford,  70  N.  Y.  253 159 


rTanj.>weress  Estate,   53  Am.   Dec.   554 337 

Garvin  v.  State,  52  Miss.  207 290 

Gannt  v.  State,  50  N.  J.  L.  491 289 

Great  West  IMininji'  Co.  vs.  Woodmas  of  Alston 

Mining-  Co.,  12  Col.  46 184 

Hall  V.  Warren,  9  Ves.  603 338 

Harlan,  Mr.  -histice,  Opinion  in  the  Rnnk  Case_  292 

Hathaway  v.  Clark,  5  Pick.  490 177 

Hinchman  v.  Richie,  1  Bright  Rep.  144 156,  240 

Holman  v.  Holman,  80  Me.  139 247 

Hutchens  v.  Johnson,  12  Conn.  376 178,218 

Teck,  Ri-y  Sing  v.  Anderson,  57  Cal.  251 181 

James,  re,  30  How  Pr.   (  N.  Y.  )  453 247 

Jones  V.  Jones,  45  Ind.  148 290 

X 


PAGE 

Kemniler,  in  re,  186  U.  S.  436 192 

Lagraves  Case,  lb.  ]).  333  (Sup.  (H.  1st  Dist.)__  146 

Laml)ert,  re  W.  H.  ((Vil.)  L.  E.  A.  55 200 

McCiirrj  y.  Hooper,  12  Ala.  823 185 

McGee  v.  Hayes,  127  Cal.  336 181 

McMiu-ray  v.  Hooper  (Ala.)  46  Am.  Dee.  280-__  217 

Mandeville  v.  Reynolds,  68  N.  Y 155 

Marshall  v.  Holmes,  141  U.  S.  589 171 

Matter  of  Killau,  172  N.  Y.  547 155 

Matter  of  Kmiball,  155  N.  Y.  62 155 

Matter  of  Law,  56  App.  Div.  454 157 

Meade  v.  Dep.  Marshal,  Va.  Dist.,  1  Brock.  324, 

Fed.  Cas ,  213 

Metealf  v.  Hark,  41  Barb.  45 146 

Meiirers  Appeal,  119  Pa.   St.   115 225 

Molton  V.  Henderson,  62  Ala.  426 180 

Moody  y.  Bibbs,  50  Ala.  245 192 

Mnllioan  y.  Smith,  59  Cal.  206 181 

Mnlhado  y.  Brooklyn  City  E.  E.,  30  N.  Y.  370—  290 
Murray s    Lessee    v.    Hoboken    Land    Co.,    18 

How.  272 188 

O'Donoghue  y.  Boies,  157  X.  Y.  87 157 

Olean  St.  E.  E.  Co.  y.  Fairmount  Construction 

Co.,  55  App.  Diy.  Sup.  Ct 141 

Overly  y.  Gordon,  171  U.  S.  21 156 

Owings,  Eebecca,  re,  1  Bland  Ch.  Eep.  489 232 

Parsons  y.  Eussell,  11  Mich.  113 197 

People  ew  rel  Gould  y.  Barker,  150  N.  Y.  52 156 

People  ex  rel  Elizabeth  Ordway  y.  St.  Saviour 

Asylum,  34  App.  Div 240 

XI 


PAGE 

l»liila(k'lphia  v.  Miller,  49  Pemi.  440 196 

Portland  y.  Bangor,  65  Me.  120 196 

Reynolds  y.  Etna,  160  N.  Y.  635 154 

Res  Adjndieata  and  Collateral  Attack 154 

Scott  y.  McNeill,  154  U.  S.  34 155, 156 

Simon  y.  Craft 99,440 

Snellinji  y.  Watrons,  2  Paige  314 145 

Smith  y.  Reed,  134  N.  Y.  568 155 

Smith  y.  l^nrlingame,  6  Martin's  Rep.  643 231,  271 

Stafford  y.  Stafford,  6  Martin's  Rep.  643 231,271 

State  y.  Billings,  Am.  St.  Rep.  525 241,271 

State  y.  Goodwill,  25  Am.  St.  Rep.  876 287 

State  ex  rcl  Larkin  y.  Ryan,  70  Wise.  676 193 

State  y.  Baird,  47  Mo.  301 225 

Stewart  y.  Kirkl)ride,  2  Brewst.  419 198,  271 

Stewart  y.  Palmer,  74  N.  Y^  183 194 

Titlow  y.  Titlow,  93  Am.  Dec.  691 337 

Territory  y.  Sheriff  of  Gallatin  Co.,  6  Mont.  297         225 
Tracey,  in  re,  1,  p.  580 247 

Underwood  y.  McVeigh,  23  Graft  (  Va.)  409 252 

United  States  y.  Throckmorton,  98  U.  S.  616 167 

Vanauken,  in  rr,  10  N.  J.  Eq.  186 247 

Van  Den  sen  y.  Newcomer,  40  Mich.  90 236 

Wait  y.  Maxwell,  5  Pick.  219 187 

Wendel,  Matter    of    Georgiana  G.  R.,  33  Misc. 

496 203,207 

Whitemack,  in  re,  3  N.  J.  525 247 

Windsor  y.  McVeigh,  93  U.  S.  278 248,  251,  267 

Wyckoff  y.  Packard,  20  Abb.  (  N.  C. )  420 145 

XII 


In  the  Supreme  Court  of  tlie  United  States 


OCTOBER     XERIVI,     1916 


IS7o.    121 


JOHN  ARMSTIIONG  CHALONER,  Plaintiff-in-EiTor, 

agahifit 
THOMAS  T.  SHERMAN,  Defendant-in-Erior. 


Brief  of  Plaintiff-in-Ekror. 


John  Armstrong  Ch  a  loner,  pro  se. 

INTRODUCTION   TO  APPEAL  BRIEF  AND 

ARGUMENT. 

Statement. 

This  action  was  brouLU'lit  by  the  plaintiff  against  the 
defendant  on  the  5th  day  of  April,  1904.  The  trial  was 
held  before  Hon.  George  C.  Holt,  District  Jndge,  and  a 
jury  in  the  United  States  District  Court  for  the  Southern 
District  of  New  York  on  the  19th,  20th,  21st  and  23d 
days  of  February,  1912.  At  the  close  of  the  plaintift's 
case,  the  Trial  Court  directed  a  verdict  in  favor  of  the 
defendant.  In  rendering  a  decision  in  favor  of  the  de- 
fendant and  against  the  plaintiff,  the  Court  rendered 


an  opinion  orall}'  wliicli  is  fully  set.  forth  in  the  record. 
Thereafter  and  on  the  6th  day  of  March,  1912,  judgment 
^\as  entered  in  the  said  Court  in  favor  of  the  defendant 
and  against  the  plaintilf  upon  the  issues  in  this  action. 

Thereafter,  b^^  order  of  the  Siiid  District  Court,  a  writ 
of  error  was  issued  and  allowed  to  the  plaintiff  to  have 
reviewed  in  the  United  States  Circuit  Court  of  Appeals, 
for  the  Second  Circuit,  the  said  judgment  heretofore  en- 
tered on  the  Gth  day  of  March,  1912.  A  writ  of  error 
atid  citation  was  thereupon  duly  issued  to  the  plaintiff- 
in-error  who  duly  served  his  assignment  of  (M-i'ors  upon 
the  defendant  in  this  action. 

The  testimony  upon  the  trial  of  this  case  is  greatly 
abbreviated  because  of  the  limitations  placed  upon  the 
plaintiff's  counsel  by  the  rulings  of  the  learned  Court. 
Before  these  limitations  were  defined  by  the  Court,  how- 
ever, certain  evidence  was  intro<luced  by  the  plaintiff. 
The  demand  made  by  the  plaintilf  on  the  defendant  for 
the  property  which  is  the  subject  matter  of  this  suit  Avas 
duly  proved  and  received  in  evidence  and  marked  Plain- 
tiff's ''Exhibit  1.''  It  was  cenceded  tlmt  there  was  no 
delivery  under  this  demand. 

The  plaintiff's  sworn  statement  before  the  Tax  Com- 
missioner of  the  Citv  of  New  York,  made  l)v  him  on 
April  28th,  189C,  was  next  received  in  evidence  to  show 
that  the  plaintiff's  residence  at  that  date  was  Cobham, 
Va. 

The  testimony  of  plaintiff's  former  wife,  which  was 
taken  by  a  deposition,  was  then  offered  to  provc^  the 
plaintiff's  residence  prior  to  his  commitment  under  the 
alleged  fraudulent  proceedings  in  New  York,  whicli  we 
contend  upon  the  admitted  perjui'y  of  ^yinthrop  Astor 
Chanler,  Chief  Petitioner  in  the  1897  x)roceedings,  were 
fraudulent ;  also  the  plaintiff's  condition  of  health.  Tlie 
condition  of  the  plaintiff's  health  was  excluded  by  the 
Court. 


3 


A  certified  copy  of  the  1897  lunacy  proceedings^  under 
which  the  phiiutiff-iu-error  was  confined,  was  then  ex- 
cluded by  the  Court,  with  exception  to  tlie  plaintiff.  All 
evidence  attackino-  the  validity  of  the  contents  of  the 
1897  and  1899  proceedings  was  excluded  by  the  Court, 
with  exception  to  the  plaintiff.  The  next  evidence 
in  the  record  attacks  the  jurisdiction  of  the  Court  in 
the  1899  proceedings.  Evidence  was  introduced  by  the 
plaintiff  showing  that  the  Commissioners  in  the  1899 
lunacy  proceedings  were  not  sworn  at  the  time  that  a 
notice  instituting  same  was  issued  by  said  Commis- 
sioners. 

Pedro  N.  Piedra,  the  next  witness,  testified  that  he  was 
a  nurse  employed  at  the  Bloomingdale  Asylum  (falsely 
so  called,  its  true  name  being  ''The  Societv  of  the  New 
York  Hospital,"  with  hospital  and  offices  in  15th  Street, 
just  west  of  Fifth  Avenue,  New  York),  in  Westchester 
County,  N.  Y.,  by  Dr.  Lyon,  its  superintendent,  in  1899. 
He  was  engaoed  in  takinc:  care  of  Mr.  John  Armstrong 
Chaloner,  the  plaintiff'  in  this  case.  He  was  daily  with 
Mr.  Chaloner  from  eight  a.  m.  to  eight  p.  m.,  during  the 
months  of  Mnj  and  June,  1899.  (Transcript  of  Kecord, 
pp.  30-33,  fols.  56-63.) 

The  Court  thereupon  excluded  all  testimony  relating 
to  the  physical  or  mental  condition  of  John  Armstrong 
Chaloner,  tlie  plaintiff'  herein,  at  the  very  time  that  the 
1899  proceedings  were  being  held  in  New  York  County 
without  the  attendance  of  the  said  John  Armstrong  Chal- 
oner, named  in  said  proceedings  as  the  alleged  incom- 
petent person.  The  Court  refused  to  permit  an  examina- 
tion of  this  witness  in  any  way  about  the  pliysical  or 
mental  condition  of  the  plaintiff-in-error  in  May,  1899. 
The  plaintiff's  counsel  offered  to  prove  that  these  pro- 
ceedings were  fraudulent  and  that  the  alleged  incom- 
petent person  was  perfectly  sane  at  that  time.    The  offer 


was  also  made  to  show  by  conversatious  with  the  phy- 
sicians who  testified  at  said  proceedings  that  on  or  about 
that  verv  dav  thev  had  admitted  to  tlie  v.itness  tliat 
said  Jolni  Armstrong  Chaloner  was  perfectly  sane. 

The  ])]aintiti"s  counsel  next  offered  in  evidence  an  ex- 
emplified copy  of  certain  proceedings  had  in  the  County 
Court  of  Albemarle  County,  Virginia,  in  1901,  where 
the  plaintiff  then  resided,  alleging  that  the  plaintiff  had 
previously  been  adjudged  insane  in  New^  York  and  ask- 
ing for  an  examination  as  to  his  then  condition.  Where- 
ui)on,  said  Virginia  Court  made  an  inquiry  into  the 
sanity  of  the  plaintiff-in-error  and  found  that  he  was 
sane  and  capable  of  managing  his  affairs  and  issued  its 
decree  accordingly  on  November  6th,  1901.  This  evi- 
dence was  all  excluded  bv  the  Trial  Court. 

Hon.  Micajah  Woods,  a  lawyer  of  Albemarle,  Vir- 
ginia, was  called  and  asked  whether  or  not  he  repre- 
sented the  plaintiff  as  attorney  in  the  said  proceedings 
inquiring  into  the  sanity  of  John  Armstrong  Chaloner, 
instituted  in  Albemarle  County,  Virginia,  by  C.  Ruffin 
Randolph  on  September  20th,  1901,  and  which  was  de- 
cided on  November  6th,  1901.  Plaintiff  also  offered  to 
show  l)y  this  witness  under  what  procedure  and  what 
law  C.  Ruffin  Randolph  filed  this  application  in  refer- 
ence to  the  sanity  of  this  plaintiff  in  the  Albemarle 
County.  Va.,  proceeding  in  1901.  The  Virginia  record 
was  mai'ked  Plaintiff's  "Exhibit  7"  for  identification. 
Exception  was  duly  taken  to  the  refusal  of  the  Court 
to  admit  this  exemplified  copy  of  the  record  of  these  Vir- 
ginia proceedings.  By  stipulation  it  was  agreed  between 
counsel  in  the  case  that  the  Virginia  record,  nmrked 
Plaintiff"'s  "Exhibit  7"  for  identification,  should  be 
handed  up  to  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit  on  appeal  as  if  said  record 
weie  a  model  exhibit.     Micajah  Woods  also  gave  evi- 


dence  as  to  a  certain  letter  received  by  hiiu  from  the 
plaiiitiff-in-error,  dated  July  .'lOtli,  1S97,  which  evidence 
went  to  prove  the  plaintiff's  sanity  at  that  date.  This 
letter  also  shows  ])hiintift"'s  statement  as  to  his  resi- 
dence in  Virginia  at  the  date  of  his  commitment  to  the 
"Bloominodale"  Insane  Asvlnm.  See  offer  as  made  bv 
counsel,  and  the  exclusion  by  the  Court  with  exception 
to  the  plaintiff. 

John  Armstrong  Chaloner,  the  plaintiff-in-error,  also 
gave  clear,  lucid  and  convincing  testimony  in  this  case 
by  deposition  as  appears  by  the  record  herein. 

After  dealing  with  the  question  of  idaintitf' s  residence, 
plaintiff  offered  to  prove  by  the  plaintiff'  himself  that 
he  was  lured  into  the  State  of  New  York  for  the  pur- 
pose of  being  thrown  into  ''Bloomingdale"  Asylum  and 
to  show  that  the  proceedings  and  the  testimony  upon 
which  they  were  based,  which  resulted  in  his  confine- 
ment in  "Bloomingdale"  Asylum,  were  void  and  false 
upon  their  face.  The  Court  declined  to  receive  this  tes- 
timonv,  holding  as  a  matter  of  law  that  the  defendant 
is  not  responsible  for  the  illegal  acts  of  those  who  placed 
the  plaintiff'  in  ^'Bloomingdale."  The  Court  said,  'J 
will  assume  for  the  purpose  of  this  case  that  he  was 
lured."  The  Court  also  took  the  position  that  it  was 
not  a  question,  in  this  case,  as  to  whether  the  order  of 
Judge  Gildersleeve.  of  the  New  York  Suprenu^  Court, 
directing  the  confinement  of  the  plaintiff  to  the  Asylum, 
is  void.  The  learned  Court,  at  this  point,  stated  that 
a  proceeding  in  a  civil  suit  to  recover  money  on  a  debt 
would  be  void  if  the  person  on  whom  service  was  made 
was  lured  into  the  jurisdiction.  But  the  Court  held 
that  a  judgment  determining  a  man's  sanity  is  a  fact 
which  does  not  depend  on  how  the  respondent  was 
brought  into  the  jurisdiction  of  the  court.  The  Court 
also  stated  that  no  matter  how  he  comes  to  a  particular 


6 


place,  how  he  is  brought  or  by  what  fraudulent  means 
he  is  brought  there,  the  Court  still  has  jurisdiction  over 
his  person  and  his  property. 

Finally,  the  Court  said,  "Any  testimony  that  you  may 
wish  to  offer  in  regard  to  the  sanity  of  Mr.  Chaloner  I 
shall  exclude.  Any  evidence  that  you  wish  to  offer  tend- 
ing to  show  that  he  was  lured  into  the  State  I  shall  ex- 
clude if  that  is  the  only  object  of  the  testimony."  Ex- 
ception was  duly  entered  to  the  Court's  ruling  in  this 
regard.  It  was  then  conceded  by  counsel  for  defendant 
that  the  plaintiff's  counsel  duly  offered  evidence  in  the 
depositions  of  witnesses  to  show  that  John  Armstrong 
Chaloner  is  sane,  and  always  has  been  a  sane  man.  which 
testimonv  was  excluded  bv  the  Court  on  defendant's 
objection,  on  the  ground  that  it  had  no  materiality  to 
the  issues,  with  exception  to  the  plaintiff-in- error. 

The  plaintiff'  was  not  permitted  by  the  Court  to  show 
the  motives  back  of  the  conspiracy  and  the  luring  which 
resulted  in  the  i^laintiff's  confinement  in  an  insane  asy- 
lum. This  testimony  Avas  offered  in  connection  with 
the  deposition  of  Winthrop  Astor  Chanler,  one  of  the 
petitioners  in  the  commitment  proceedings.  For  the 
same  reason  he  was  not  permitted  to  show  fraud  in  said 
commitment  proceedings  and  in  particular  the  false 
statement  alleged  to  have  been  made  by  Arthur  A.  Carey, 
one  of  the  said  petitioners. 

The  plaintiff"s  next  offer  related  to  the  failure  on  the 
part  of  the  defendant  at  the  time  of  the  application  for 
his  appointment  as  committee  to  give  notice  to  John 
Armstrong  Chaloner  of  such  application ;  also,  that  the 
defendant  was  aware  of  the  Virginia  proceedings  at  the 
time  of  such  application  and  in  particular  that  the  de- 
fendant knew  that  John  Armstrong  Chaloner  had  been 
previously  adjudged  sane  in  the  State  of  Virginia.  The 
Court  said,  "I  exclude  any  evidence  tending  to  show 


that/'  to  which  an  exception  was  duly  entered.  Also, 
the  Conit  cxcliidod  evidence  tendin.o-  to  show  (luit  Pi-es- 
cott  Hall  Bntler,  the  predecessor  of  Thomas  T.  Sher- 
man, as  committee,  was  represented  by  counsel  in  the 
Virginia  proceedings  at  which  the  plaintiff  was  dechu-ed 
sane.  The  further  testimony  of  more  than  twenty  (20) 
other  witnesses,  all  tending-  to  show  that  the  plaintiff 
was  and  is  sane,  was  next  excluded  by  the  Court,  and 
finally,  to  summarize,  the  Court  excluded  the  follow- 


ing 


1. — All  proof  of  the  sanity  of  John  Armstrong 
Chaloner,  the  plaintiff  herein. 

2. — All  proof  of  the  fact  that  John  Armstrong 
Chaloner  was  declared  sane  by  the  decree  of  a 
Virginia  Court  prior  to  the  n))pointment  of 
Thomas  T.  Shennan  as  committee  of  said  plain- 
tiff. 

3. — All  evidence  to  show  that  the  plaintiff  was 
at  all  times  during  the  1897  and  1809  proceed- 
ings a  citizen  of  the  State  of  Virginia  and  that 
the  New  York  Court  was  thereby  without  juris- 
diction over  him. 

4. — All  proof  that  John  Armstrong  Chaloner 
was  lured  into  the  jurisdiction  of  the  New  Yoi'k 
Court  for  the  |)urpose  of  committing  him  as  an 
insane  person  in  a  New  York  institution. 

5. — All  proof  of  plaintiff's  inability  to  attend, 
while  confined  in  an  insane  asylum  in  Westchester 
County,  the  so-called  1899  Sheriff's  jury  proceed- 
ings which  were  held  in  New  York  County  in  the 
absence  of  John  Armstrong  Chaloner,  the  subject- 
matter  of  that  inquiry. 

6. — All  proof  as  to  the  physical  disability  of 
the  plaintiff  at  the  time  of  this  i)ro(ee(ling  going 
to  show  that  there  was  no  real  contest  and  that 
there  was  fraud  in  their  inception. 


8 

7. — Proof  of  the  continuing  condition  of  sanity 
of  John  Armstrong  Chaloner. 

8.— Proof  of  the  sanity  of  John  Armstrong 
Chaloner  by  his  written  documents. 

To  the  refusal  of  the  learned  Court  to  receive  evidence 
upon  any  of  the  foregoing  elements  and  issues  in  this 
case,  exception  was  duly  taken  by  the  plaintiff-in-error. 
Thereupon,  the  defendant  moved  for  the  direction  of  a 
verdict  for  the  defendant.    The  Court,  after  stating  the 
grounds  for  its  opinion,  granted  this  motion,  and  on 
March  (Uh,  li)12,  judgment  was  entered  in  favor  of  the 
defendant      The  Court,  in  directing  a  verdict  for  the 
defendant,  ruled  in  effect  that  the  plaintiff-in-error  had 
no  right  of  recourse  to  the  Federal  (Jourt.     In  denying 
relief  to  the  plaintiff  in  the  United  States  Court,  the 
Court  held  that  the  plaintiff's  only  remedy  was  to  apply 
to  the  New  York  Supreme  Court.     Hence,  although  the 
plaintiff  is  still  a  resident  of  another  sovereign  State, 
and  although  the  amount  involved  in  this  action  is  more 
than  two  thousand  dollars  ( .|2,000 ) ,  he  was  by  the  said 
United  States  District  Court  denied  the  right  to  a  trial 
by  jury  in  a  Court  of  competent  jurisdiction.     Because 
of  the  ruling  al)ove  set  forth  and  more  specifically  set 
forth  in  the  assignment  of  errors  filed  by  the  plaintiff- 
in-error,  in  the  United  States  Circuit  Court  of  Appeals, 
the  plaintiff-in-error,   subsequent   to   March   6th,   1912, 
procured  from  the  United  States  District  Court  for  the 
Southern   District  of  New  York  a  writ  of  error  to  re- 
view said  judgment,  and  such    proceedings    were    had 
therein  that  an  order  of  the  United  States  Circuit  Court 
of  Appeals  for  the  Second  Circuit  was  made  and  entered, 
confirming  in  all  respects  said  judgment  with  costs,  and 
on  the  18th  day  of  June,  1014,  a  mandate  was  duly  is- 
sued ther(H)n  to  the  Judges  of  the  United  States  District 


Court  for  the  Southern  District  of  New  York,  and  a 
judi^nient  was  thereon,  on  tlie  27th  day  of  .June,  1914, 
duly  entered,  affirming'  in  all  respects  the  said  final 
judj^nient  of  March  (ith,  1912. 

Thereafter,  to-wit,  on  the  (!th  day  of  April,  1915,  the 
plaintitt'-in-error  procured  from  the  said  United  States 
Circuit  Court  of  Appeals  ior  the  Second  Circuit  an 
order  that  a  \\rit  of  error  be  allowed,  to  have  reviewed 
in  the  Supreme  Court  of  the  United  States  the  judj>- 
ment  theretofore  entered  on  the  27th  day  of  June,  1914, 
which  affirmed  the  final  judgment  therein  entered  on  the 
6th  day  of  March,  1912,  and  a  further  order  that  all 
further  proceedings  be  superseded  and  stayed  until  the 
final  determination  of  said  writ  of  error  by  the  said 
Supreme  Court  of  the  United  States,  and  until  the 
further  order  of  the  United  States  Circuit  Court  of  Ap- 
peals for  the  Second  Circuit. 

A  writ  of  error  and  citation  was  thereupon  duly  issued 
to  the  plaintiff-in-error,  who  duly  served  same,  and  his 
assignment  of  errors,  upon  the  defendant  in  this  action. 

Because  of  the  rulings  of  the  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  set  forth  and 
more  specifically  referred  to  in  the  annexed  assignment 
of  errors,  the  plaintiff-in-error  begs  leave  to  appeal  to 
this  Honorable  Court. 


10 


UNITED  STATES  CIRCUIT  COURT  OF  APPEALS 
FOR  THE  SECOND  CIRCUIT. 


JOHN  ARMSTRONG  CHALONER,  Plaintiff-in-Error, 

aga'mst 
THOMAS  T.  SHERMAN,  Defendant-in-Error. 


Assignment  of  Errors. 


Now  comes  the  plaiiitiff-in-error,  John  Armstrong 
Chaloner,  herein  by  AYilliam  D.  Reed,  his  attorney,  and 
respectfully  submits  and  presents  and  files  his  assign- 
ment of  errors  complained  of  and  says:  That  in  the 
record  of  the  proceedings  in  the  above  entitled  cause  in 
the  United  States  Circuit  Court  of  Appeals  for  the 
Second  Circuit,  there  is  manifest  error  in  this,  to-wit: 

First  :  That  the  learned  United  States  Circuit  Court 
of  Appeals  for  the  Second  Circuit  erred  in  affirming  the 
judgment  of  the  United  States  District  Court  for  the 
Southern  District  of  New  York,  dismissing  the  com- 
plaint filed  by  the  plaintilT-in-error  in  said  cause. 

Second:  That  the  learned  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  affirm- 
ing the  decision  of  the  Trial  Court  in  holding  that  the 
plaintiff  Chaloner's  present  condition  of  sanity  never 
became  an  issue  in  the  case  and  could  never  become  so 
unless  the  court  below  had  been  justified  in  collaterally 


11 


settini»  aside  the  decretal  order  or  unless  the  defendant 
had  adduced  some  evidence  of  present  incompetency  as 
an  affirmative  defense. 

Third  :  That  the  learned  United  States  (^ircuit  Court 
of  Appeals  for  the  Second  Circuit  erred  in  affirming  the 
decision  of  the  trial  court  in  excluding  testimony  to  show 
the  mental  condition  of  the  plaintiff,  Chaloner,  in  1899, 
and  in  holding  that  that  issue  could  not  be  litigated  in 
this  action  and  Avas  solely  for  the  New  York  Courts. 

Fourth  :  That  the  learned  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  hold- 
ing that  whether  or  not,  in  1897,  the  plaintiff  was  lured 
into  this  State  was  immaterial. 

Fifth  :  That  the  learned  United  States  Circuit  Court 
of  Appeals  for  the  Second  Circuit  erred  in  holding  that 
the  New  York  Court  had  jurisdiction  over  the  plaintiff" 
in  the  1899  proceedings,  even  assuming  that  the  plaintiff 
was  at  all  times  a  resident  of  Virginia. 

Sixth  :  That  the  learned  United  States  Circuit  Court 
of  Appeals  for  the  Second  Circuit  erred  in  holding  that 
the  question  of  plaintiff's  residence  was  one  of  the  facts 
in  issue  in  the  1899  proceedings  and  having  been  there 
adjudicated  that  it  cannot  be  collaterally  attacked. 

Seventh:  That  the  learned  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  affirm- 
ing the  rulings  of  the  Trial  Court  in  excluding  testi- 
mony  offered  to  show  that  the  testimony  in  the  1899 
proceedings  was  perjurious. 


12 


Eighth  :  That  tlie  learned  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  holding 
that  the  plaintiff,  Chaloner,  failed  to  appear  in  the  1899 
proceedings  after  dnc  notice  of  the  order  or  judgment 
to  appear. 

Ninth  :  That  the  learned  United  States  Circuit  Court 
of  Appeals  for  the  Second  Circuit  erred  in  holding  that 
cai'e  was  exercised  in  serving  the  various  notices  of  mo- 
tions and  proceedings  on  the  plaint itf,  Chaloner. 

Tenth  :  That  the  learned  United  States  Circuit  Court 
of  Appeals  for  the  Second  Circuit  erred  in  its  finding  that 
the  plaintitf,  Chaloner,  deliberately  failed  to  appear  in 
the  1899  proceedings. 

Eleventh  :  That  the  leai'iied  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  finding 
that  full  opportunity  was  afforded  to  the  plaintiff,  Chal- 
oner, to  appear  in  the  1899  proceedings. 

Twelfth  :  That  the  learned  ITnited  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  hold- 
ing that  the  propriety  and  sufiiciency  of  the  notice 
to  the  plaintiff,  Chaloner,  of  the  1899  proceedings  are 
no  longer  open  to  (luestion. 

Thiteenth  :  That  the  learned  United  States  Circuit 
Court  of  Appeals  foi*  the  Second  Circuit  erred  in  hold- 
ing that  in  regard  to  the  failure  to  give  the  plaintiff, 
Chaloner,  notice  of  the  resignation  of  the  committee, 
Butler,  and  the  appointment  of  Sherman,  as  committee, 
that  there  is  no  statutory  requirement  of  notice  in  such 
a  proceeding  and  that  notice  to  the  committee  of  a  pro- 
posed  removal   is   the   only  notice  required. 


13 


FouRTEKXTH  :  That  the  learned  United  States  CMrenit 
Coni't  of  Appeals  for  the  Second  Circuit  erred  in  holding? 
tliat  if  notice  were  required  the  failure  to  i;ive  it  is  an 
irregularity  Avhich  must  be  dealt  with  by  the  State  Court 
of  original  jurisdiction. 

Fifteenth  :  That  the  learned  United  States  Circuit 
Court  of  Appeals  for  tlie  Second  Circuit  erred  in  holding 
that  the  judgment  of  the  New  York  Court  was  not  a 
void  judgment. 

Sixteenth:  That  the  learned  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  hold- 
ing that  the  judgment  of  the  New  York  Court  must  re- 
main valid  until  reversed  or  set  aside  by  the  Courts  of 
New  York. 

Seventeenth  :  Tliat  the  learned  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  erred  in  holding 
that  the  judgment  of  the  Supreme  Court  of  New  York 
remains  today  in  full  force  and  validity. 

Eighteenth  :  That  the  learned  United  States  Circuit 
Coul^t  of  Appeals  for  the  Second  Circuit  erred  in  holding 
that  if  the  petitioner's  sanity  is  established  and  even  if 
some  of  the  requirements  of  the  statute  had  been  omitted 
or  neglected  or  insuliftcient  evidence  of  insanity  was  ad- 
duced, relief  must  be  obtained  in  the  court  which  ap- 
pointed the  committee. 

Nineteenth  :  That  the  learned  United  States  Circuit 
Court  of  xVppeals  for  the  Second  Circuit  erred  in  holding 
that  this  Federal  Court  has  not  jurisdiction  to  set  aside 
or  annul  the  judgment  of  the  State  Supreme  Court. 


14 


Wherefore  the  said  plaintiff-iu-error  prays  that  the 
judgment  of  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit  and  the  judgment  of  the  District  Court  of  the 
United  States  for  the  Southern  District  of  New  York 
be  reversed  and  sucli  directions  be  given  that  full  force 
and  efficacy  may  enure  to  said  i^laintiff-in-error  by  rea- 
son of  the  allegations  set  up  in  the  complaint  filed  in 
said  cause. 

WILLIAM  D.  REED, 
Attorney  for  plaintiff-in-Error, 

John  Armstrong  Chaloner. 
Office  and  postoffice  address :  45  Cedar  Street,  Borough 
of  Manhattan,  New  York  City. 

(From  Trial  Brief*  in  iliaJoncr  against  i^herniaiiy 

pp.  152-163.) 

THE  NINETEEN  POINTS. 

Points  of  Law. 

Point  1. — The  commitment  proceedings  were  void  for 
the  following  reasons,  to-wit:  There  was  fraud  and 
trickery  in  luring  the  plaintiff,  John  Armstrong  Chal- 
oner, a  citizen  of  Virginia,  into  a  foreign  jurisdiction  for 
the  purpose  of  depriving  him  of  liberty  and  property  on 
a  false  charge  of  insanity. 

Point  2. — The  said  proceedings  were  void  for  the  fol- 
lowing reason,  to-wit :  There  was  fraud  and  trickery 
upon  the  part  of  the  Medical  Examiners  in  Lunacy  in  the 
pay  of  the  petitioners,  who,  in  order  to  keep  plaintiff"  in 
ignorance  of  the  acts  of  the  said  ])etitioners,  and  that 
he  should  have  no  knowledge  of  the  impending  action. 


♦Written  by  plaintiff-in-error  in  1902-1904.     Printed  and   copy- 
righted, 1905. 


15 


upou  the  part  of  the  said  petitioners,  to  deprive  him  of 
liberty  and  property  on  the  said  false  charge  of  insanity, 
pretended  to  liave  an  interest  in  trances-states  and  r<*- 
quested  plaintiff  to  enter  a  trance  in  order,  as  they  al- 
leged, that  they  might  for  purely  scientific  reasons,  note 
the  action  of  a  trance.  Plaintiff,  to  oblige  said  Exam- 
iners in  Lunacy,  who  never  announced  themselves  as 
such,  but  kept  said  fact  strictly  in  the  background,  and 
appeared  in  the  guise,  one  of  a  surgeon,  the  other  of 
an  oculist — entered  said  trance.  While  in  said  trance, 
plaintiff  nuide  some  remarks.  8aid  remarks  form  the 
main  charge  against  the  sanity  of  the  plaintiff.  Said 
remarks  were  made  wholly  without  the  slightest  ratio- 
cination or  volition  upon  plaiutift"'s  part,  except  that, 
to  oblige  the  said  surgeon  and  the  said  "oculist,"  he  per- 
mitted himself  to  enter  said  trance  and  while  in  said 
trance,  for  purely  scientific  reasons,  temporarily  sur- 
rendered his  reasoning  and  speaking  faculties  to  the  in- 
fluence of  said  trance.  The  said  medical  men  expressed 
themselves  as  interested  in  said  trance-phenomena,  and 
thereupon  took  their  departure.  They  visited  plaintiff"  on 
one  other  occasion  when  the  trance  was  resumed.  There- 
upon after  a  discussion  of  trances  in  general  and  plain- 
tiff's in  particular,  said  parties  departed.  A  short  time 
thereafter  the  "oculist"  appeared  and  brusquely  in- 
formed plaintiff,  who  was  at  his  rooms  at  a  hotel  in 
New  York  City,  at  which  he  was  temporarily  sojourning, 
and  in  which  rooms  the  said  conversations  had  taken 
place,  that  he  was  insane  and  that  he  must  accompany 
said  "oculist,"  who  now,  for  the  first  time,  disclosed  his 
identity,  and  said  that  he  was  a  Medical  Examiner  in 
Lunacy,  employed  by  the  said  petitioners.  Plaintiff 
laughed  at  the  allegations  of  insanity,  and  reciuested  said 
examiner  in  lunacy  to  state  the  grounds  upon  which  said 
allegation  was  based.    Said  medical  man  thereupon  said, 


16 


''The  things  you  said  in  tlie  trance."  Plaintiff  laughed 
at  this,  whereupon  said  medical  man  said :  "Don't  you 
believe  the  things  you  said  in  the  trance?"  Upon  which 
plaintiff  replied  with  an  emphatic  negative.  Plaintitf 
declined  to  accompany  said  medical  man,  whereupon, 
some  twenty  hours  later,  March  13th,  1897,  plaintiff  was 
arrested  by  two  policemen  in  plain  clothes  in  his  said 
rooms,  and  taken  by  them  to  The  Society  of  the  New 
York  Hospital  at  White  Plains,  Westchester  County, 
New  York,  falsely  known  as  "Bloomingdale,"  and  there 
incarcerated  for  three  years  and  eight  months  in  a  barred 
cell,  on  a  false  charge  of  lunacy ;  until  Thanksgiving  eve, 
1900,  when  plaintiff  escaped  and  fled  to  Philadelphia. 
Plaintiff  was,  of  course,  no  more  legally  accountable  for 
what  he  said  in  said  trance,  under  the  said  circumstances, 
than  he  would  have  been  legally  accountable  for  remarks 
made  in  his  sleep. 

Point  3. — The  said  proceedings  were  void  for  the  fol- 
lowing reason,  to-wit:  There  was  fraud  npon  the  Court, 
as  well  as  upon  the  party,  upon  the  part  of  the  said 
Medical  Examiners  in  Lunacy.  Said  medical  men  doc- 
tored plaintiff's  trance  utterances;  that  is  to  say,  said 
medical  men  divided  said  trance  utterances  into  two 
divisions.  The  first  division  said  medical  men  took  out 
of  the  said  trance  utterances,  and  placed  by  themselves. 
The  second  division  said  medical  men  mixed;  leaving  part 
to  be  guessed  at  by  the  Court,  and  taking  the  other  part 
out  of  said  trance  utterances.  The  parts  in  both  instances 
which  were  taken  out  of  the  trance  utterances  were 
stated  by  said  medical  men  as  having  been  said  by  plain- 
tiif,  leaving  it  to  be  inferred  that  said  parts  were  not 
parts  of  said  trance  utterances  but  were  plaintiff's  own 
views  which,  upon  the  evidence,  it  being  admitted  by  said 
medical  men  that    plaintiff    "frequently    went    into    a 


17 


traiiee-like  state,"  upon  said  evidence  tliey  emphatically 
were  not.  Fnrtliennore :  Said  medical  men  also  swore 
that  plaintiti"  was  ''violent"  and  ''dangerous,"  two  al- 
legations profoundly  false,  and  totally  disproved  by 
plaintitf's  conduct  at  the  time,  and  during  the  three 
years  and  eight  months  he  was  incarcerated  at  White 
Plains.  In  the  proceedings  in  1899  not  one  word  was 
said  about  plaintiff's  being  dangerous  or  harmful  to  him- 
self or  anybody  else,  not  one  word  even  by  the  paid  wit- 
nesses of  the  other  side,  and  plaintiff  had  then  been  for 
over  two  years  under  observation. 

Point  4. — The  said  proceedings  were  void  for  the 
following  reasons,  to  wit:  There  was  perjury  upon  the 
part  of  the  said  petitioners  \\ho,  although  at  the  time 
the  said  falsely  alleged  acts  on  the  part  of  plaintiff  were 
falsely  sworn,  of  their  0A\n  knowledge,  l)y  said  peti- 
tioners, to  have  occurred  at  plaintiff's  home  in  Vir- 
ginia, said  petitioners  were  widely  separated  from  plain- 
tife ;  one  of  the  said  petitioners  being  in  New  York,  one 
of  the  said  petitioners  beiuii;  in  New  England,  and  the 
third  of  the  said  petitioners  l)eing  in  England. 

Point  5. — The  said  proceedings  were  void  for  the  fol- 
lowing reason,  to  wit :  There  was  fraud  upon  the  ('ourt 
as  well  as  upon  the  party,  upon  the  part  of  the  said 
petitioners.  P'or  the  foundation  of  the  commitment  pro- 
ceedings had  in  New  York  (Mty,  March  10,  1S97,  was 
the  sworn  testimony  of  the  said  petitioners  who — with 
the  exception  of  the  said  medical  men— were  the  only 
witnesses  sworn  at  said  proceedings;  and  the  ('ourt  re- 
lied upon  the  truth  of  the  oaths  of  said  i)etitioners  that 
their  said  allegations  against  the  plaintiff's  sanity  were 
of  their  oivn  knoiclcdge,  whereas  they  were  emphatically 
the  reverse. 


18 

1*0INT  (). — The  said  pvoceediiij's  were  void  in  toto,  for 
the  reason  that  owing-  to  the  fact  that  plaintiff  was  Ivept 
away  from  Conrt  by  perjnry  and  tiitkery,  as  aforesaid, 
there  was  no  real  contest. 

Point  7. — The  said  proceedings  in  1899  were  void  in 
toto,  for  the  reason  that  owing  to  the  fact  that  plaintiff, 
by  contrivance,  was  kept  away  from  Court,  there  was  no 
real  contest.  The  said  contrivance  being  that  instead  of 
setting  the  hearing  in  the  County  Court  House  of  West- 
chester County,  at  White  Plains,  where  plaintiff  was 
confined,  said  hearing  was  set  in  Manhattan,  over  twenty 
miles  away.  This  was  done  to  keep  plaintiff  out  of  Court, 
for  said  petitioners  were  in  a  i)osition  to  know  of  plain- 
tiff's physical  disability,  aforesaid,  at  the  time.  Where- 
as had  said  hearing  been  set  at  White  Plains  Court- 
less  than  a  mile  from  plaintiff's  cell— plaintiff  could 
have  been  carried  there  in  a  carriage  without  danger  of 
injury  to  him;  or,  if  that  was  not  done,  committees  of 
the  said  Commission  and  jury  could,  in  an  hour,  have 
visited  him  and  examined  him. 

Point  8. — The  said  i)roceediiigs  in  IS99  were  void  for 
the  following  reasons,  to  wit : 

(a)  The  only  evidence  of  plaintiff's  alleged  incompe- 
tency came  from  the  said  two  medical  nu^n  in  the  pay 
of  the  other  side,  and  fi'om  the  said  Medical  Superin- 
tendent of  The  Society  of  the  New  York  Hospital.  Said 
evidence  was  on  the  evidence  strictly  of  two  varieties, 
to  wit,  frivolous,  or  ])erjured.  The  basis  of  the  allega- 
tions of  the  two  said  medical  nien  against  plaintiff's 
competency  and  sanity  was  the  aforesaid  trance.  At 
the  special  request  of  said  medical  men  ))laintiff',  for 
scientific  reasons,  entered  a  trance  in  order  that  he 
miiiht  hear  the  comments  thereon  of  two  medical  men 


19 


who  alleiied  that  they  were  interested  in  trances.  The 
only  time  that  idaintitf  entered  a  trance  durini;  his  stay 
of  three  vears  and  eii>ht  months  at  White  Phiins  was 
in  the  presence  of  said  medical  men.  IMaintiff  di<l  not 
hesitate  to  do  this,  althou.^h  the  doinj;-  of  it  had  already 
got  him  in  tronble,  for  the  reason  that  ])laintiff  being  a 
lawyer  knew  his  rights,  and  knew  that  he  had  a  legal 
riii'ht  to  enter  a  trance.  Said  medical  men  had  deliber- 
ately  lied  to  plaintiff.  Said  medical  men  had  deliber- 
ately deceived  plaintiff.  Plaintiff  upon  the  appearance 
of  said  medical  men,  had  at  once  asked  them,  *'Do  yon 
represent  anybody?"  To  which  they  both  promptly  re- 
plied that  they  represented  no  one.  That  the  reason  for 
their  visit  was  that  a  friend  of  plaintiff's,  whom  they 
voluntarily  and  without  questioning  u])on  plaintiff's 
part  named,  had  requested  them  to  call  and  see  plain- 
tiff as  said  friend  was  anxious  that  plaintiff  should  get 
out  of  ^'Bloomingdale."  Plaintiff  later  communicated 
with  said  friend  and  found  that  there  was  not  a  word 
of  truth  in  said  medical  men's  assertion  touching  said 
friend's  share  in  said  medical  men's  visit.  It  developed 
later  that  said  medical  men  were  sent  by  the  other  side 
to  obtain  testimony  for  the  other  side  at  said  proceed- 
ings in  1899.  The  portions  of  said  medical  men's  said 
testimony  concerning  plaintiff's  said  trance  is,  of  course, 
frivolous,  from  a  legal  standpoint;  a  party  having — un- 
der the  said  circumstances — a  legal  right  to  enter  a 
trance. 

(b)  A  specimen  of  said  medical  men's  evidence  had 
to  do  with  matter  touched  on  in  a  letter  attached  to 
plaintiff's  present  affidavit,  which  letter  plaintiff  had 
written  to  a  legal  friend  on  March  26,  1900,  requesting 
him  to  procure  counsel  for  plaintiff  in  order  to  institute 
habeas  corpus  proceedings  to  procure  plaintiff's  release. 
Plaintiff  in  said  conversation  with  said  medical  men. 


20 


touched  on  in  said  letter,  stroniily  eeusnred  the  parties 
directly  or  indirectly  interested  in  holdinj>'  ])laintif¥  a 
prisoner  on  a  false  charge,  and  nnder  void  proceedings. 
Said  medical  men  to  whom  plaintiff  had  spoken  as  freely 
npon  said  topics  as  in  said  letter,  palpably — as  will  ap- 
pear upon  reading'  said  medical  men's  sworn  evidence 
at  the  said  proceedings  in  181)9,  and  as  Avill  appear  npon 
reading  in  connection  therewith  plaintiff's  said  attached 
letter — said  medical  men  palpal)ly  and  in  a  most  bare- 
faced and  preposterous  fashion  garbled  the  substance 
of  said  conversation  and  of  said  letter.  The  balance  of 
material  allegations  are  on  a  par  with  above  for  bare- 
faced perjury.  Lastly,  said  medical  men  palpably  per- 
jured themselves  on  the  witness  stand  at  said  proceed- 
ings in  1899,  by  swearing  in  effect  that  plaintiff  was  not 
only  hopelessly  insane  and  incompetent,  but  that  plain- 
tiff was  increasingly  so,  and  that  plaintift"'s  falsely  al- 
leged insanity  and  falsely  alleged  incompetency  w'ould 
increase  with  the  lapse  of  time;  all  of  which  palpably 
perjurious  allegations  have  been  abundantly  disproved 
by  plaintiff's  acts  since  said  trial,  and  by  plaintiff's  trial 
November  G,  1901,  in  the  Countv  Court  of  Albemarle 
County,  Virginia,  the  same  being  a  court  of  record,  in 
which  county  plaintiff's  home  is ;  at  which  trial  plaintiff' 
was  declared  both  sane  and  competent;  said  trial  hav- 
ing been  instituted  by  a  neighbor,  upon  plaintiff's  re- 
appearance at  plaintiff's  said  home  after  plaintiff's  said 
escape,  with  a  view  to  ascertaining  plaintiff's  sanity  and 
competency ;  plaintiff'  at  this  time  standing  under  the 
said  void  New  York  proceedings,  in  the  light  of  an  es- 
caped lunatic,  whom  it  was  dangerous  to  allow  at  large. 
Plaintiff  has  since  lived  continuously  at  his  said  home 
in  Albemarle  County,  Virginia,  undisturbed. 

And  all  of  which  plain tiff-in-error  offered  to  prove  on 
the  trial  in  the  lower  Court,  but  was  barred  from  doing 


21 


so  by  the  erroiiooiis  iiiliiij>s  of  the  learned  Trial  Judge, 
(pp.  ;iO-:«,  fols.  ry7A)?>;  pp.  57-GO,  fols.  107-112.) 

Point  0. — The  said  proceedini>s  were  void  in  toto  for 
they  were  without  due  process  of  law,  and,  therefore, 
unconstitutional,  for  the  following  reason:  There  was 
lack  of  notice. 

Point  10. — The  said  proceedings  were  void  for  the  fol- 
lowing- reason,  to-wit:  They  were  summary.  Lunacy 
proceedings  in  New  York  State  are  mandatory,  in  de- 
rogation of  common  law  rights,  and  must,  therefore,  be 
strictly  observed  in  pursuance  of  the  statute.  While 
said  commitment  was,  in  fact,  made  to  the  Society  of  the 
New  York  Hospital,  it  was  not  so  stated;  the  term 
Bloomingdale  Asylum  being  used,  an.  institution  un- 
known to  the  law. 

Point  U. — The  proceedings  in  New  York  City  in 
1899,  before  a  Commission  and  a  Sheriff's  jury  to  de- 
clare plaintiff  an  incompetent  person  in  ahsentia,  plain- 
tiff never  being  before  the  jury  or  represented  in  Court 
in  any  way,  were  void  ///  toto;  for  they  were  without 
due  process  of  law,  and  therefore  unconstitutional,  for 
the  following  reasons:  (a)  There  was  lack  of  proper 
notice,  for  the  plaintiff  being  at  the  time  in  duress  of 
imprisonment,  illegally  confined  under  void  proceedings, 
and  without  access  to  counsel,  the  so-called  notice  was  no 
notice  at  all.  (b)  There  was  lack  of  opportunity  to  ap- 
pear and  be  heard.  For  plaintiff,  upon  the  sworn  testi- 
mony of  the  medical  men  in  the  pay  of  petitioners,  was 
incapacitated  from  coming  into  Court,  plaintiff  being  in 
bed  with  an  affection  of  the  spine  at  the  time  of  said 
trial,  and  having  been  so  for  more  than  three  weeks  pre- 
vious thereto. 


22 


Point  12. — The  said  proceediiiiis  in  181)9  were  void 
for  lack  of  due  process  of  law  for  the  following  reasons, 
to-wit :  >SV«V?  trial  teas  had  lit  ahscntia.  The  Court  failed 
to  direct  the  appearance,  before  said  Commission  and 
said  Sheritl's  jury,  of  plaintiff  and  the  Court  also  failed 
to  direct  that,  failing  this,  said  Commission  and  jurj^  or 
committees  made  up  therefrom  should  visit  plaintiff  in 
his  cell  in  the  Society  of  the  New  York  Hospital,  at 
White  Plains. 

Point  13. — The  said  proceedings  in  1899  were  void  for 
lack  of  due  process  of  law,  for  the  follo^^'ing  reasons,  to- 
wit :  (1)  Although  notice  of  the  said  proceedings  could 
have  been  given  days  earlier,  the  order  was  barely  com- 
plied with  in  giving  the  required  five  days,  and  the  hear- 
ing placed  at  the  unheard  of  hour  of  four  o'clock  in  the 
afternoon  in  New  York  Citv,  more  than  twentv  miles 
away  from  White  Plains,  where  plaintiff  was  confine!!. 
This  would  naturally  hurry  the  trial.  (2)  Tlie  <<mstitu- 
tional  guarantee  of  due  process  of  Inw  applies  to  the  pro- 
ceedings at  the  trial.  It  compels  an  orderly,  fair,  rea- 
sonable presentation  of  tlie  facts,  and  a  legal  conclusion 
therefrom.  At  the  said  jury  trial  in  this  case  there  Avas 
a  iDost  colossal  disregard  of  the  rights  of  liberty  and 
property.  When  the  evidence  was  in — and  thei-e  seemed 
some  chance  of  the  appearance  of  the  plaintiff — the 
foreman  of  the  said  Sheriff's  jury  stated  to  the  said 
Commission  :  ''It  will  be  very  hai*d  to  bring  this  jury 
here  again  and  it  is  not  their  desire  to  have  an  adjourn- 
ment of  this  inquest.  They  think  the  case  can  be  sub- 
mitted upon  the  testimony  which  has  been  given.  They 
(ht  not  wish  to  have  the  respondent  placed  u])on  the 
stand."  And  this  from  the  foreman  of  a  Sheriff's  jury 
where  the  lil)erty  and  ]^roperty  of  a  citizen  were  at  stake, 
and  where  said  jury  had  not  been  emi)loyed  for  weeks  or 


23 


even  days  upon  said  ease,  but  had  met  foi*  the  tirst  time 
in  their  lives  on  said  ease,  at  four  o'eloek  that  afternoon. 

Point  14. — The  said  proceedings  in  1897  and  tlie  said 
proceedings  in  1899  were  void  ///  l<tt(>  from  hick  of  proper 
evidence.    Unless  there  is  clear  proof  of  insanity  a  judg- 
ment against  the  party  founded  thereon  runs  foul  of  the 
constitutional  provision.     On  tlie  maxim  that  "only  the 
best  evidence  procurable  is  admissible"  no  evidence,  short 
of  the  alleged  lunatic's  personal  appearance  iu  Court  or 
before  a  committee  of  the  jury,  can  be  the  best  evidence 
procurable  of  said  alleged  lunatic's  mental  and  physical 
condition.     Anything  short  of  said  personal  appearance 
is  purel}^  e.r  parte  and  therefore  void.     The  sum  total  of 
the  evidence  against  plaintiff  in  the  proceedings  in  1897 
was  made  up  of  either  purely  perjured  testimony  upon 
the  part  of  the  said  petitioners,  or  purely  bought  and 
paid  for  testimony  upon  the  part  of  the  said  medical 
examiners  in  lunacy  hired  by  the  said  petitioners.     The 
sum  total  of  the  evidence  against  plaintiff  in  the  pro- 
ceedings iu  1899  was  made  up  of  the  aforesaid  evidence^ 
perjured  testimony,  upon  the  part  of  the  said  medical 
examiners  in  lunacy,  who,  as  in  the  first  instance,  were 
in  the  pay  of  the  other  side.     The  bulk  of  the  evidence 
in  both  said  proceedings  had  to  do  with  the  purely  friv- 
olous   charge    that    plaintiff    entered    upon    occasionsil 
trances,  and  trance-like  states.     Not  one  word  was  ut- 
tered at  either  of  the  said  proceedings  against  plain- 
tiff's business  capacity,  or  business  judgment,  or  business 
foresight,  or  business  prudence.     And  this  fatal  omis- 
sion was  in  the  teeth  of  the  fact  that  plaintiff  was,  at  the 
time  the  said  proceedings  in  1897  were  instituted,  ac- 
tively engaged   in  large  business  operations,  in  which 
plaintiff  had  been  engaged  for  four  years  past,  and  was 
holding  the  position  as  a  member  of  the  Board  of  Direc- 


24 

tors  in  two  large  corporations  at  the  time  of  plaintitf's 
said  arrest  and  imprisonment  upon  a  false  charge  of 
lunacy  (pp.  36-37,  fols.  69-71 ;  pp.  46-47,  fols.  87-89).  Not 
a  single  one  of  plaintiff's  associates  upon  said  Boards 
was  called  as  a  witness  against  plaintiff's  sanity.  In  short 
the  whole  evidence  in  plaintiff's  case  goes  to  prove  plain- 
tiff's permanent  and  unhroken  sanity  and  competency 
through  life.  (See  Plaintiff's  Exhibit  3,  and  Plaintiff's 
Exhibit  7  for  identification.) 

Point  15. — Plaintiff's  sanity  at  the  time  of  arrest  is 
proved  by  plaintiff's  letter  to  Hon.  Micajah  Woods,  dated 
July  3rd,  1897,  upon  Mr.  Justice  Harlan's  opinion  in 
the  Runk  case,  which  holds  that  a  written  instrument 
by  a  person  accused  of  insanity  may  successfully  offset 
prima  facie  evidence  of  insanity.  (  See  Plaintiff's  Ex- 
hibit 6  for  identification.)  This  document,  written  by 
the  plaintiff  in  July,  1897,  was  erroneously  excluded  by 
the  Trial  Court,      (pp.  60-61,  fols.  113-116.) 

Point  16. — The  said  proceedings  in  1899  were  void  for 
the  reason  that  the  only  evidence  of  plaintiff"'s  alleged 
incompetency  came  from  two  medical  men  in  the  pay  of 
the  said  petitioners,  and  from  the  medical  men  in  charge 
of  the  Society  of  the  New  York  Hospital  where  plaintiff 
was  confined,  and  to  whose  pecuniary  interest  it  was 
therefore — plaintiff  being  the  highest  pay  (falsely  al- 
leged) "patient"  in  said  hospital — to  keep  plaintiff  in 
said  hospital  as  long  as  he  could ;  and  said  paid  for,  or 
otherwise  pecuniarily  interested,  evidence,  standing  un- 
contradicted— for  the  reason  aforesaid  that  plaintiff'  was 
by  said  contrivance  aforesaid  kept  out  of  Court  and 
therefore  was  unable  to  contradict  said  evidence — said 
evidence  standing  uncontradicted  was  not  a  valid  foun- 
dation for  the  judgment  which  followed. 


25 


Point  17. — Even  if  the  judginent  of  the  New  York 
State  Courts  in  1897  and  1899  aforesaid,  were  not  totally 
null  and  void  for  the  reasons  aforesaid,  the  said  judg- 
ments are  now  functus  officio  for  the  reason  that  they 
have  nothing  to  feed  upon,  a  judgment  in  insanity  self- 
evidently — since  insanity  is  not  always  incurable — not 
being  a  continuing  one,  and  plaintiff  having  been  found 
to  be  both  sane  and  competent,  as  well  as  a  citizen  of 
Virginia,  by  the  said  judgment  -rendered  November  G, 
1901,  by  the  said  Virginia  Court  (Plaintiff's  Exhibit  7 
for  identification). 

Point  18. — Upon  the  above  grounds  of  fraud,  want 
of  jurisdiction,  lack  of  due  process  of  law,  unconstitu- 
tionality, illegality,  nullity,  and  functus  officio  the  said 
New  York  proceedings  may  be  attacked  collaterally; 
and  T.  T.  Sherman,  the  so-called  committee  of  plaintiff's 
person  and  estate,  who  is  merely  a  Trustee  ex  maleficio 
may  be  assailed  as  a  trespasser  upon  plaintiff's  prop- 
erty. 

Point  19. — Plaintiff  being  a  citizen  of  Virginia,  and 
the  said  alleged  committee  of  plaintiff's  person  and  es- 
tate being  a  citizen  of  New  York  and  doing  business  in 
New  York  City,  and  the  amount  in  controversy  being 
over  three  thousand  dollars,  the  Federal  Circuit  Court 
for  the  Southern  District  of  New  York   has  jurisdiction. 

The  foregoing  nineteen  points  of  law  are  discussed  in 
detail  and  at  length  hereinafter. 


'H 


WHAT  WE  SHALL  PROVE. 

Upon  the  accoinpanying-  authorities  we  shall  establish 
the  above  points  of  law.     In  particular : 

First. — That  Point  9  proves  the  constitutional  right  to 
notice. 

Second. — That  Point  11  proves  the  constitutional  right 
to  opportunity  to  appear  and  be  heard. 

Third. — That  Point  12  proves  that  trials  in  absentia 
are  illegal. 

Fourth. — That  Point  15  proves  that  an  instrument 
written  by  a  person  accused  of  insanity  may  success- 
fully offset  said  charge. 

The  evidence  offered  by  the  plaintiff-in-error  on  the 
trial  of  this  case,  but  excluded  by  the  Court  with  excep- 
tion to  the  plaintiff,  would  have  shown : 

(1)  That  plaintiff  has  always  been  sane  and  compe- 
tent (Transcript  of  Record,  pp.  57-58,  fols.  107-113.). 

(2)  That  plaintiff  was  lured  into  a  foreign  jurisdic- 
tion under  false  pretenses  for  the  purpose  of  depriving 
him  of  liberty  and  property  upon  a  false  charge  of  in- 
sanity (  pp.  46-49,  fols.  87-92. ) 

(3)  That  plaintiff  and  petitioners  had,  for  a  long 
period,  l)een  on  unfriendly  terms;  and  that  interested 
motives  had  to  do  with  the  said  lunacy  proceedings 
being  instituted. 

(4)  That  facts  were  purposely  withheld  from  the 
Court,  and  proceedings  taken,  which,  if  known  to  the 
Court,  would  have  prevented  the  judgment  received, 
(pp.  30-33,  fols.  50-63.) 

(5)  False  statements  upon  the  part  of  the  petitioners 
and  others  in  connection  M'ith  said  case  (p.  25,  fols.  47- 
49  ;  pp.  26-30,  fols.  50-57). 

(6)  Conspiracy  in  connection  Avith  said  case.  (pp. 
30-33,  fols.  56-63.) 


27 


(7)  And  generally,  that  the  Court  was  scandalously 
used  as  a  machine  for  achieving  a  criminal  purpose. 

Upon  the  accompanying  authorities  we  shall  establish 
the  above  points  of  law.*  The  documents  annexed  to 
plaintiff's  affidavit  and  the  documents  annexed  to  this 
brief  will  show  that  we  shall  i)rove  in  this  case : 

( 1 )  "That  plaintitf  has  always  been  sane  and  com- 
petent.'' 

Said  letter  of  July  3rd,  1897,  and  said  Trial  Brief 
prove  said  contention:  Supported  by  Mr.  Justice  Har- 
lan's said  opinion  in  the  Runk  case  aforesaid,  which 
maintains  that  a  written  instrument  by  an  alleged  luna- 
tic can  successfully  ott'set  medical  evidence  against  the 
writer's  sanity. 

(2)  ''That  plaintiff  was  lured  into  a  foreign  juris- 
diction under  false  pretenses  for  the  purpose  of  depriv- 
ing him  of  liberty  and  property,  upon  a  false  charge  of 
insanity." 

The  said  'statement  of  facts  proves  said  contention. 

(3)  "That  plaintiff  and  petitioners  had,  for  a  long 
period,  been  on  unfriendly  terms;  and  that  interested 
motives  had  to  do  with  the  said  Lunacy  Proceedings 
being  instituted." 

The  said  letters  from  plaintiff's  family  annexed  to 
plaintiff's  affidavit  aforesaid  as  well  as  plaintiff's  alle- 
gations thereanent  in  said  letter  of  July  3rd,  1897,  to 
Captain  Micajah  AA^)ods  corroborated  by  said  letter  of 
the  late  Hon.  Janu^s  Lindsay  Gordon,  aforesaid,  prove 
said  contentions  ( ])age  131,  Trial  Brief  on  file  in  Chal- 
oner  against  Sherman). 

(1)  ''That  facts  were  purposely  withheld  from  the 
Court,  and  i^roceedings  taken,  which,  if  known  to  the 
Court,  would  have  prevented  the  judgment  received." 

The  said  statement  of  facts  proves  said  contention. 


*1905  Trial  Brief,  third  line  foot  page  537. 


28 


(5)  "We  shall  show  false  statements  upon  the  part 
of  the  petitioners  and  others  in  connection  with  said 
case." 

The  said  commitment  papers  and  plaintiff's  examina- 
tion of  the  testimony  of  the  proceedings  of  1899  prove 
said  contention. 

(6)  "We  shall  show  conspiracy  in  connection  with 
said  case." 

The  said  statement  of  facts  proves  said  contention. 

(7)  "And  generally,  we  shall  show  that  the  (^ourt  was 
scandalonslv  used  as  a  machine  for  achieving  a  criminal 
purpose." 

The  said  statement  of  facts  prov^es  the  said  contention. 

EPITOME. 

The  plaintiff  in  said  case  being  a  citizen  of  Virginia, 
while  being  interested  in  a  law  business  in  New  York 
City  and  a  manufacturing  business  in  North  Carolina, 
occasionally  visited  New  York.  Upon  one  of  said  oc- 
casional trips  to  New  York  an  altercation  of  a  busi- 
ness nature  arose  between  plaintiff  and  a  certain  party 
who  later  assumed  the  role  of  one  of  the  three  peti- 
tioners in  a  proceeding  to  ha^'e  plaintiff"  declared  and 
locked  up  as  a  lunatic.  Shortly  after  said  altercation 
plaintiff  returned  to  plaintiff's  home  in  Virginia. 

It  might  be  as  well  to  observe  tliat  besides  the  afore- 
said occupations  plaintiff,  a  blaster  of  Arts  of  Columbia 
University,  had  more  or  less  kept  up  an  interest  in 
psychology  after  graduating  therefrom,  and  had  for  some 
four  years  previous  to  March,  1897 — the  time  of  the 
bringing  of  the  said  proceedings  in  lunacy — spent  much 
spare  time — after  business  hours — in  carrying  on  inves- 
tigations in  experimental  psychology  which,  strangely 
enough,  resulted  in  plaintiff's  developing  mediumistic 


29 


or  psychic  powers  a  few  months  before  March,  1897.  It 
should  be  borne  in  mind  that  phiintitf,  thoui^h  Iteinj^- 
a  so-called  medium,  is  and  always  has  been  strongly  anti- 
spiritualistic  in  plaintiff's  bent,  attributiuL!:  said  niedium- 
istic  phenomena,  such  as  automatic  writin.<>;,  and  trances, 
and  trance-like  states,  to  purely  psycholoiiical  forces. 

Said  party  with  whom  plaintiff  had  had  said  business 
altercation,  hearing  of  plaintift^s  said  experiments  in  ex- 
perimental psychology,  saw  an  oppoi'tnnity.  Said  party 
thereupon  sent  an  emissary,  accompanied  by  a  physician, 
totally  unannounced,  to  plaintiff's  home  in  Virginia  in 
February,  1897,  with  the  purpose  thereby  of  enticing 
plaintiff  to  the  City  of  New  York,  with  the  purpose  of 
there  incarcerating  plaintiff"  for  life  upon  a  trumped-up 
charge  of  lunacy  based  upon  plaintiff's  utterances  while 
in  said  trance-like  states.  Said  emissary,  being  a  very 
old  and  very  intimate  friend  of  plaintiff — albeit  said 
emissary  and  plaintiff"s  relations  were  at  said  time  a 
trifle  strained  from  a  rather  abusive  letter  said  emissary 
had  written  plaintiff'  recently — plaintiff'  yielded  to  the 
urgent  appeals  of  said  emissary  to  accompany  said  emis- 
sary to  New  York.  Plaintiff  was  further  led  to  do  so  as 
plaintiff  had  some  business  in  New  York  at  said  time 
which  needed  looking  after. 

Upon  reaching  New  York  City  plaintiff  was  ap- 
proached by  said  emissary  and  said  physician  with  re- 
gard to  favoring  said  parties  with  the  sight  of  plaintiff' 
in  a  trance.  Plaintiff  readily  complied  in  the  privacy  of 
plaintiff's  rooms  in  the  hotel  at  which  plaintiff  was  stop- 
ping in  New  York  City. 

Shortly  thereafter  said  physician  brought  a  perfect 
stranger  into  plaintiff's  said  rooms  without  announcing 
said  stranger.  Plaintiff  expostulated  Avitli  said  physi- 
cian thereupon,  but  finally  to  oblige  said  physician,  com- 
plied with  said  physician's  request  and  entered  a  trance- 


'SO 


like  state  before  said  stranger.  It  might  be  as  well  to 
observe  that  said  stranger  presented  himself  under  false 
colors,  since  said  stranger  pretended  to  be  an  oculist 
wliile  in  reality  said  stranger  was  a  medical  examiner  in 
lunacv. 

Shortly  thereafter  said  stranger  reappeared  in  plain- 
tiff's rooms  after  dark,  and  ordt;^red  plaintiff  to  get  up — 
plaintiff"  was  in  bed  at  said  time — and  accompany  said 
stranger  to  an  unnamed  destination.  Said  stranger 
promptly  warned  plaintiff*  that  resistance  would  l)e  use- 
less since  said  stranger  had  another  num  in  the  next 
room  and  two  other  men  outside  the  door.  Plaintiff' 
perfectly  (juietly  and  without  the  slightest  show  of  force, 
as  promptly  convinced  said  stranger  that  said  stranger 
had  failed  to  bring  enough  men  to  carry  off  plaintiff  that 
night.  Next  day  two  police  officers  in  plain  clothes 
presented  themselves  at  plaintiff's  said  hotel,  and  plain- 
tiff, without  unnecessary  argument,  permitted  said 
policemen  to  escort  plaintiff  to  the  Society  of  the  New 
York  Hospital,  at  White  Plains,  New  York. 

It  turned  out  tliat  said  party  joining  with  two  other 
parties  liad  run  plaintiff*  into  an  insane  asylum  upon  a 
false  charge  of  lunacy,  in  order  to  get  plaintiff"  out  of  the 
wav.  It  miiilit  be  as  well  to  state  that  plaintiff  was  on 
exceedingly  bad  terms  with  said  two  other  parties,  who 
therefore  readily  joined  said  party  in  said  conspiracy. 

After  eff'orts,  extending  over  a  period  of  nearly  four 
years,  plaintiff'  abandoned  all  hope  of  ever  getting  out 
of  said  insane  asylum  alive  and  thereupon  decided  to 
escape  therefrom,  and  did  escape  therefr<»m,  thereupon. 

After  six  months'  voluntary  stay  in  a  ])rivate  sani- 
torium  in  Philadelphia,  whither  plaintiff  had  fled  to 
safety,  and  to  have  plaintiff's  sanity  and  competency 
tested  as  a  set-off'  lo  the  nearly  four  years  aforesaid  of 
false   imprisonment   upon   said   trumped-up   charge   of 


31 

hiiiacy  and  iiicoinpeteiicy,  plaintiff  spent  six  weeks  at 
another  private  sanitoriuni  in  Delaware  County,  Penn- 
sylvania, after  the  snnimer-closini;-  of  said  IMiiladelpliia 
sanitoriuni;  and  while  plaintiff  was  \vaitini>-  for  plain- 
tiff's Virginia  eounsel  to  get  througli  said  counsel's  legal 
engagements  sufficiently   to  together  meet  plaintiff   in 
conference  in  Virginia.     Thereupon  plaintiff  set  out  for 
Virginia.      Thereupon    plaintiff"   landed    in    l^ynchl)urg, 
Virginia,  where  plaintiff  remained  until  the  twentieth 
of  Septend)er,  1901,  when  plaintiff,  accompanied  by  plain- 
tiff's said  counsel,  put  in  an  appearance  at  Charlottes- 
ville, Va.,  the  county  town  of  the  county  in  which  plain- 
tiff"s  home  is  situated.     Thereupon  plaintiff  was  tried — 
Novend)er  Gth,  1901 — in  the  (\)unty  Court  of  said  Albe- 
marle   Countv,    Virginia,    situated    at    Charlottesville, 
aforesaid,  in  a  proceedings  brought  by  a    neighbor  of 
plaintiff'  in  said  county,  in  order  to  ascertain  whether 
or  not  a  Committee  for  the  person  and  property  of  plain- 
tiff should  be  appointed,  since  plaintiff'  was  regarded  as 
a  dangerous  escaped  lunatic  upon  the  strength  of  plain- 
tiff's said  nearly  four  years'  imprisonment  in  said  insane 
asylum.    Thereupon  plaintiff  was  fully  ac(|uitted  of  said 
charge  of  being  a  lunatic  and  said  Court  dismissed  said 
petition  for  a  Committee  of  plaintiff's  person  and  estate. 
Thereupon  plaintiff"  and  plaintiff's  New  York  counsel 
have  been  at  work  upon  plaintiff's  case.     Plaintiff"  has 
written  this  entire  brief,  since  plaintiff,  being  a  psycholo- 
gist as  well  as  a  member  of  the  New  York  Bar  of  more 
than  twenty  years'  standing,  was  equipped  therefor.  The 
delay  in  getting  to  (\)urt  is  amply  accounted  for  in  said 
brief. 


32 

From 

APPEAL  BKIEF. 

In  Chaloiier  ajiainst  t^hermaii 

To 

The  United  States  Circuit  Court  of  Appeals  for  the 

Second  Circuit. 

Your  petitioner  respectfully  suggests  that  a  word  of 
explanation  may  not  be  out  of  place  concerning  the 
unusual  circumstances  of  your  petitioner's  drawing  up 
his  own  brief  on  appeal. 

Briefly  the  circumstances  are  these: 

The  entire  substance-matter  making  up  said  brief  on 
appeal  is  taken  from  books  or  documents  already  copy- 
righted or  written  by  your  petitioner. 

For  example.  The  entire  list  of  authorities  is  drawn 
from  the  fifteen  hundred  page  law  book,  copyrighted  by 
your  petitioner  in  1905 — after  requiring  two  full  years 
of  incessant  and  arduous  toil  and  research  upon  your 
petitioner's  part  to  write— and  in  the  evidence  at  the 
trial  of  this  case  entitled  "*Brief  and  Appendix  in  Chal- 
oner  against  Slierman,''  containing  Brief  and  Argument- 
in- Writing. 

The  assignment  of  errors  hereto  annexed  was  c1i-awn 
by  your  petitioner. 

Lastly.  Tlie  argument  in  the  sliape  of  parallels — and 
so  designated — in  which  the  rulings  of  the  United  States 
Circuit  Court  of  Appeals  for  the  Second  Circuit,  in  162 


♦Described  hereafter  as  Trial  Brief. 


33 


Federal  Keports,  19,  are  paralleled  by  those  of  the 
learned  Trial  Court  and  where  the  more  than  a  score  of 
instances  in  which  said  learned  Trial  Court  reversed 
the  rulings  of  the  learned  Appellate  Court,  are  briefly 
set  forth  for  the  convenience  of  this  learned  Court  in 
the  form  of  parallels,  to  save  labor  and  time  in  this  most 
voluminous  case;  said  parallels  were  drawn  up  by  your 
petitioner. 

The  statement  of  facts  and  tli-e  law  of  this  case  can- 
not be  more  comprehensively  or  succinctly  put  than  by 
the  learned  United  States  Circuit  Court  of  Appeals  for 
the  Second  Circuit,  in  its  opinion  handed  down  May  11th, 
1908,  and  entitled  162  Federal  Reports,  19.  Your  peti- 
tioner therefore  inserts  said  162  Federal  Keports,  19, 
in  ecotenso. 

162  Federal  Reports,  19. 

Chaiilcr  v.  ^liermmi. 

(Circuit  Court  of  Appeals,  Second  Circuit.) 

May  11,  1908. 

No.  201. 

In  error  to  the  Circuit  C^ourt  of  the  United  States 
for  the  Southern  District  of  New  York,  W.  D.  Reed,  for 
plaintiff -in-error ;  Evarts,  Choate  and  Sherman  (J.  H. 
Choate,  Jr.,  and  George  L.  Kobbe,  of  counsel),  for  de- 
fendant-in-error. 

Before  Lacombe,  Coxe  and  Noyes,  Circuit  Judges. 

Noyes,  Circuit  Judge : 

"This  appeal  is  from  the  denial  of  a  petition  for 

(3) 


34 


an  auxiliary  order   in   the  nature  of  a  writ  of 
protection,  in  an  action  at  law  for  conversion. 

"The  situation  as  disclosed  by  the  record  in  the 
action  and  by  the  affidavits  upon  the  petition  may 
be  thus  briefly  stated. 

"  ( 1 )  In  1897  the  petitioner — being  the  plaintiff 
in  said  action — was  adjudged  insane  by  a  Justice 
of  the  Supreme  Court  of  New  York,  and  ordered 
committed  to  'Bloomingdale'  Asylum,  an  institu- 
tion for  the  custody  of  the  insane,  to  which  he 
was  duly  taken  and  from  which  he  escaped  in 
1900  and  went  to  Virginia. 

"(2)  In  1899  an  order  was  made  by  the  Su- 
preme Court  of  New  York  finding  that  the  peti- 
tioner was  of  unsound  mind,  and  appointing  a 
committee  of  his  person  and  property,  which  of- 
fice is  now  held  by  the  defendant  in  this  action. 

"(?>)  In  1901  upon  an  application  made  to  the 
County  Court  of  Albemarle  County,  Virginia, 
where  the  petitioner  then  resided,  alleging  that 
he  had  previously  been  adjudged  insane  in  New 
York  and  praying  for  an  examination  as  to  his 
then  condition,  said  Court  found  that  he  was  sane 
and  capable  of  managing  his  affairs. 

"  (  4  )  In  1904  the  petitioner  brought  this  action 
in  the  Circuit  Court  as  a  citizen  of  Virginia  aver- 
ring that  he  was  sane,  and  had  so  been  declared 
by  the  Virginia  Court,  and  that  said  orders  of 
the  Supreme  Court  of  New  York  and  of  the  jus- 
tice thereof  were  void  for  want  of  jurisdiction, 
and  demanding  damages  from  the  defendant  u])on 
the  theory  that  he  had  converted  the  property 
of  the  petitioner  in  his  hands  as  committee. 

"(^)   The  defendant  in  his  answer,  not  only  re- 


35 


lied  upon  said  New  York  orders  but  went  further, 
and  alleged  that  the  plaintiff — the  petitioner — 
was  and  had  been  in  fact  insane,  and  that  the 
judgment  of  the  Virginia  Court  was  collusive 
and  void. 

"(6)  The  time  for  the  trial  of  said  action  ap- 
proaching, the  plaintiff  tiled  the  present  petition, 
stating  that  his  presence  as  a  witness  at  the  trial 
was  imperatively  required,  but  that  in  case  he 
returned  to  New  York  he  was  threatened  with  re- 
incarceration in  the  asylum,  notwithstanding  the 
Virginia  decree. 

"He  therefore  prayed  for  an  order  protecting 
him  while  coming  into  the  State  of  New  York, 
attending  the  trial  and  returning. 

"It  is  apparent  from  the  record  that  upon  the 
issues  as  they  stand,  the  attendance  of  the  peti- 
tioner at  the  trial  is  necessarv.  His  case  cannot 
be  presented  without  him.  And  it  is  also  most 
probable  that,  if  the  petitioner  return  to  New 
York  without  protection  he  will  be  apprehended 
and  retaken  to  the  asylum,  as  an  escaped  patient. 
Without  relief  he  is  in  this  predicament.  He 
must  abandon  his  action  for  the  recovery  of 
a  quarter  of  a  million  dollars  in  order  to  retain 
his  freedom,  or.  must  abandon  his  liberty  in  order 
to  try  his  case.  The  Constitution  of  the  United 
States  vests  in  its  Judicial  Department  jurisdic- 
tion over  controversies  between  citizens  of  differ- 
ent States.  The  petitioner  as  a  citizen  of  the 
State  of  Virginia  in  bringing  his  said  suit  in  the 
Circuit  Court  of  the  United  States,  was  availing 
himself  of  a   right  founded  upon  this  constitu- 


ao 


tioiial  provision.*  And  he  came  into  that  Court 
with  a  decree  of  the  ( 'ourt  of  the  State  of  which 
he  was  a  citizen,  declaring  his  sanity. 

"We  cannot  disregard  that  decree.  In  consid- 
ering it  we  do  not  ignore  the  orders  of  the  Courts 
of  New  Yorli;.  Insanity  is  not  necessarily  perma- 
nent. For  the  purpose  of  this  petition — laying 
aside  jurisdictional  (questions — we  may  properly 
consider  that  the  petitioner  was  insane  when  so 
declared  in  New  York,  but  that  he  had  recovered 
his  sanity  when  he  was  declared  sane  in  Virginia. 

"The  question,  then,  is  whether  a  circuit  court 
of  the  United  States  has  power  to  protect  a  per- 
son in  the  situation  of  the  petitioner  while  at- 
tending the  trial  of  his  cause  therein.  It  is  ob- 
jected at  the  outset  that  the  Circuit  Court  has  no 
power  to  grant  a  protective  order  because  it 
would  have  the  effect  of  restraining  proceedings 
in  a  State  Court.     Section  720  of  the  Revised 


*Mr.  Justice  Harlan  in 

Arrov^smith  v.  Gleason,  129  U.  S. 

and 

Marshall  v.  Holmes,  141  U.  S. 

But  this  Court,  observing  that  the  Constitutional  right  of  the  citi- 
zen of  one  State  to  sue  a  citizen  of  another  State  in  the  Courts  of 
the  United  States,  instead  of  resorting  to  a  State  tribunal,  would 
be  worth  nothing,  if  the  Court  in  which  the  suit  is  instituted  could 
not  proceed  to  judgment  and  afford  a  suitable  measure  of  redress, 
said:  "We  have  repeatedly  held  that  the  jurisdiction  of  the  Courts 
of  the  United  States,  over  controversies  between  citizens  of  differ- 
ent States,  cannot  be  impaired  by  the  laws  of  the  States  which 
prescribe  the  modes  of  redress  in  their  Courts,  or  which  regulate  the 
distribution  of  their  judicial  power.  Arrowsmith  v.  Gleason.  129 
U.  S." 

Is  it  true  that  a  Circuit  Court  of  the  United  States,  in  the  exercise 
of  its  equity  powers,  and  cohere  diverse  citizenship  gives  jurisdiction 
over  the  parties,  may  not,  in  any  case,  deprive  a  party  of  the  benefit 
of  a  judgment  fraudulently  obtained  by  him  in  a  State  Court,  the 
circumstances  being  such  as  would  authorize  relief  by  the  Federal 
Court,  if  the  judgment  had  been  rendered  by  it  and  not  by  a  State 
Court?     Marshall  v.  Holmes.  141  U.  S.  • 


37 

Statutes  prohibits  the  granting-  of  writs  of  in- 
junction to  stay  proceedings  in  any  Court  of  a 
State,  except  when  authorized  in  bankruptcy  pro- 
ceedings. But,  assuming  that  the  order  at  pres- 
ent prayed  for  would  have  injunctive  effect,  our 
attention  has  been  directed  to  no  proceeding  pend- 
ing in  a  State  Court  which  it  would  stay. 

"It  appears  that  ten  years  ago  a  judge  of  a 
State  Court  signed  an  order  coniniitting  the  peti- 
tioner to  an  asylum,  and  that  tlie  order  was  com- 
plied witli.  It  does  not  appear  that  those  pro- 
ceedings are  still  pending,  or  that  resort  to  them 
would  be  necessary  to  recommit  the  petitioner  to 
the  asylum.  The  Statutes  of  New  York  appar- 
ently provide  that  patients  escaping  from  insane 
hospitals  may  be  returned  by  peace  oflflcers  and 
by  designated  hospital  attendants. 

"No  proceedings  in  Court  seem  necessary  or  to 
be  provided  for.  The  only  other  proceedings  in 
New  York — those  in  which  a  committee  was  ap- 
pointed — if  still  regarded  as  pending  would  not 
be  staved  bv  a  protection  order,  because  it  was 
not  the  object  of  those  proceedings  to  commit  the 
petitioner  to  an  asylum.  He  was  already  in  one 
when  they  were  instituted. 

"The  next  objection  is  that  the  petitioner  ought 
to  apply  to  the  Courts  of  the  State  of  New  York 
for  the  recision  of  the  orders  committing  him  to 
the  asylum  and  appointing  a  committee  of  his 
person  and  property.  We  have  not  the  slightest 
doubt  that  full  justice  would  be  done  the  peti- 
tioner should  he  submit  himself  to  the  jurisdic- 
tion of  the  State  Courts. 

"But  to  assume  that  he  was  under  any  obliga- 
tion to  resort  to  them  is  to  beg  the  whole  ques- 


38 


tion  at  issue.  To  say  that  the  orders  in  question 
were  valid  and  must  stand  until  set  aside  by  the 
tribunal  which  granted  them,  is  to  assert  that 
the  petitioner  has  no  cause  of  action  in  the  Circuit 
Court.  But  he  states  a  cause  of  action.  He  as- 
serts that  the  orders  were  wholly  void  for  want 
of  jurisdiction.  And  if  the}'  were  void,  they  were 
of  no  effect,  and  the  petitioner  had  a  right  to 
assert  their  invalidity  in  any  Court. 

''We  now  come  to  the  broad  question  of  the 
power  of  the  Circuit  Court  to  grant  a  protective 
writ. 

"Such  writs  liave  been  issued  since  early  times 
to  protect  witnesses  and  parties  coming  from  one 
State  into  another  to  attend  a  trial,  from  arrest 
and  detention  upon  civil  process.  It  is  true  that 
if  the  petitioner  Avere  retaken  as  an  escaped  in- 
sane patient,  it  would  not  be  upon  civil  process. 
But  whatever  the  form  of  process — if  any  at  all 
were  necessary — tlie  power  exercised  to  retake  him 
would  be  tliat  of  the  police.  \Vith  the  exercise  of 
the  police  power  of  a  State  a  Court  of  the  United 
States  should  not  lightly  interfere.  But  we  have 
no  doubt  of  its  right  to  interfere  wlieu  necessarv 
for  the  efficient  exercise  of  its  own  jurisdiction 
and  where  the  threatened  act  under  the  police 
power  must  rest  for  its  justification  upon  the 
validity  of  the  v(^ry  matter  whicli  the  Court  is 
called   upon  to  determine. 

"The  petitioner  was  given  tlie  right,  under  the 
laws  of  the  I'nited  States,  to  try  his  case  in  the 
Courts  of  the  Ignited  States.  He  is  not  permit- 
ted to  exercise  that  full  right,  and  the  Court  in 
effect  is  not  permitted  to  exercise  its  full  jurisdic- 
tion, if,   while  attending  the  trial  and   perhaps 


39 


before  he  can  be  heard,  lie  may  be  seized  and  taken 
to  an  asylum — and  so  seized  for  the  reason  that 
he  had  been  previously  committed  under  an  order 
which  the  petitioner  in  the  very  case  was  assert- 
ing to  be  wholly  void.  Under  such  extraordinary 
conditions,  we  think  the  Circuit  (^our^  had  the 
power  to  grant  the  protective  writ. 

"Having  determined  the  question  of  power,  we 
come  to  the  propriety  of  exercising  it. 

"Notwithstanding  the  fact  that  the  petitioner 
is  at  liberty  in  other  States,  it  is  suggested  that 
it  would  be  unsafe  for  him  to  be  brought  to  New 
York.  If  any  danger  were  to  be  apprehended  it 
would  furnish  a  good  reason  for  refusing  the  writ. 
There  is,  however,  nothing  in  the  record  to  indi- 
cate the  probability  of  any  such  danger  and  the 
petitioner's  prayer  for  relief  is  based  upon  the 
express  condition  that  he  remain  in  the  custody  of 
United  States  Marshals  during  his  entire  sojourn 
in  the  State. 

"For  these  reasons  we  think  a  writ  of  protection 
should  issue  if  the  pleadings  in  the  case  remain 
as  they  are.  The  defendant  joins  issue  upon  the 
fact  of  sanity  after  the  New  York  orders  were 
made,  and  also  sets  up  that  the  Virginia  decree 
was  obtained  by  collusion  and  is  void.  \Vith 
respect  to  these  questions  the  presence  of  the  peti- 
tioner upon  the  trial  would  be  imperatively  r(«- 
quired.  If,  however,  the  defendant  as  a  com- 
mittee appointed  by  the  Supreme  Court  of  New 
York,  stood  squarely  upon  the  decree  of  that 
Court  as  justifying  his  acts  and  asserted  that  such 
decrees  while  unreversed,  constituted  a  complete 
defense  regardless  of  the  fact  Avhether  the  peti- 
tioner had  since  recovered  his  sanity,  the  question 


40 


upon  the  trial  in  the  Circuit  Court  would  simply 
relate  to  the  validity  of  those  decrees. 

"That  question  would  be  principally  a  question 
of  law.  Practically  the  only  facts  involved  would 
be  as  to  notice  given  the  petitioner — if  notice  is 
necessary — and  perhaps  as  to  his  residence. 

"With  respect  to  these  questions,  the  proof 
would  necessarily  be  within  narrow  limits,  and 
the  petitioner's  testimony,  if  required,  might  be 
taken  by  deposition.  IT[)on  such  issues  we  think 
the  personal  presence  of  the  petitioner  not  so 
necessary  that  he  should  be  granted  the  extraor- 
dinary relief  prayed  for  here. 

"The  order  of  the  Circuit  Court  is  reversed, 
with  costs  to  the  petitioner,  and  the  matter  is 
remanded  to  the  Court  with  instructions  in  case 
the  issues  remain  as  at  present,  to  issue  a  writ 
of  protection  to  the  petitioner  prohibiting  any 
person  from  apprehending  or  taking  him  for  the 
purpose  of  returning  liim  or  committing  him  to 
an  insane  asylum  while  attending  the  trial  of 
this  said  action,  and  for  such  reasonable  time  be- 
fore and  after  the  trial  as  said  Court  mav  deter- 

« 

mine  is  necessary  for  liim  to  come  into  the  State 
and  return,  provided  that  he  shall  submit  him- 
self during  such  time  to  tlie  custody  of  one  or 
more  United  States  Marshals,  shall  obey  their 
directions  and  shall  pay  the  expenses  of  their 
employment.  But  tliat  in  case  all  the  issues,  ex- 
cept with  respect  to  the  validity  and  effect  of 
the  said  orders  of  the  Supreme  Court  of  New 
York  and  of  the  Justice  thereof,  be  eliminated 
within  sixty  days,  then  said  writ  of  protection 
do  not  issue.-'* 


*Said  issues  remain  in  statu  quo. 


FitOM 

APPEAL  HUIEF. 

Ix  (Jhaloner  ajiuinst  Sliciiiian 

To 

The  United  States  Ciucuit  Coiut  of  Aiteaf^s  lor  the 

Second  riucriT. 


THE    PARALLELS 

In  the  followiiii>  paper  your  petitioner  luus  paralleled 
the  rulings  of  Judge  George  C.  Molt*  with  the  ruling  of 
this  Appellate  Court,  namely;  the  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit,  handed  down 
May  11th,  1908,  entitled  Chanlcr  against  Sltcnnan  (Cir- 
cuit Court  of  Appeals,  Second  Circuit),  162  Federal 
Reports,  19. 

For  the  sake  of  clearness  your  petitioner  describes  each 
pair  of  parallels  thus :  First  reversal  of  the  Appellate 
Court  by  the  Court  below;  second  reversal  of  the  Ap- 
pellate Court  by  the  Court  below,  etc.,  etc. 

First  reversal  of  the  Ap-  102  Fed.  Rep.,  19  (p.  40, 

pellate  Court  by  the  Court  .supra)  : 

below:  ''But  that  in  case  all  the 

"Second         assignmentt  issues  except  with  respect 

That  the  said  Court  erred  to  the  validity  and  etfect  of 

in  ruling  that  the  matter  of  the  said  orders  of  the  Su- 

the  plaintiff's  commitment  preme  Court  of  New  York 

had  nothing  to  do  with  the  and  of  the  Justice  thereof, 

case,  and  to  which  ruling  of  !k'  eliminated  within  sixty 

the  learned  Court,  counsel  days,  then  said  writ  of  pro- 

for     the     plaintiff-in-error  tectiou  do  not  issue."! 
duly  excepted." 

*0f  the  United  States  District  Court  for  the  Southern  District 
of  New  York,  handed  down,  February  23,  1912,  in  Chaloner  against 
Sherman. 

fin  the  Assignment  of  Errors  to  the  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit. 

:j:Said  issues  remain  in  statu   quo. 


42 


By  '^The  said  order  of  the 
Justice  thereof  is  meant 
the  commitment  proceed- 
ings, in  which  the  order  for 
your  petitioner's  commit- 
ment to  "Bloomingdale" 
Insane  Asylum  was  made 
by  Mr.  Justice  Henry  A. 
Gildersleeve,  Justice  of  the 
Supreme  Court  of  New 
York,  fully  described  in  162 
Fed.  Rep.,  19.  The  follow- 
ing language  is  from  this 
United  States  Circuit  Court 
of  Appeals,  p.  38,  supra,  to- 
wit: 

"But  he  states  a  cause 
of  action.  He  asserts  that 
the  orders  were  wholly  void 
for  want  of  jurisdiction." 


43 


Second  reversal  of  the 
Appellate  Court  by  the 
Court  below: 

"Fourth  assignment : 
That  the  said  Court  erred 
in  sustaining  the  objection 
of  counsel  for  the  defend- 
ant-in-error,  Thomas  T. 
Sherman,  to  the  admission 
in  evidence  on  the  part  of 
the  plaintiff-in-error  of  a 
certain  certified  copy  of  the 
1897  lunacy  proceedings  to 
which  ruling  of  the  learned 
Court,  counsel  for  plaintiff- 
in-error  duly  excepted." 


1G2  Fed.  Rep.,  10  (p.  40, 

sitpra)  : 

"But  that  in  case  all  the 
issues  except  with  respect 
to  tlie  validity  and  effect  of 
the  said  orders  of  the  Su- 
preme Court  of  New  York, 
and  of  the  justice  thereof, 
be  eliminated  within  sixty 
d'djH,  then  said  writ  of  pro- 
tection do  not  issue."* 

By  "T/ie  said  order  of  the 
Justice  thereof"  is  meant 
the  1897  Commitment  Pro- 
ceedings, in  which  the  or- 
der for  your  petitioner's 
commitment  to  "Bloom- 
inu'dale"  Insane  Asvlum 
was  made  by  Mr.  Justice 
Henry  A.  Gildersleeve 
aforesaid,  fully  described 
in  1(>2  Fed.  Rep.,  19,  under 
the  caption  "(1)"  p.  34, 
supra. 

Further  supported  by  the 
following  language  of  the 
learned  United  States  Cir- 
cuit Court  of  Appeals,  p. 
38,  supra,  to-wit :  "But  he 
states  a  cause  of  action.  He 
asserts  that  the  orders  were 
whollv  void  for  want  of 
jurisdiction." 

It  is,  of  course,  elemen- 
tarij  that  fraud  is  jurisdic- 
tion al. 

The  present  Princess 
Amelie  Rives  Troubetzkoy 


♦Said  issues  remain  in  statu  quo. 


44 


is  tile  former  wife  of  your 
petitioner,  wlio  was  his 
wife  until  September,  1895. 

Tlie  said  Commitment 
Proceedings  alleged  that 
the  petitioner's  falsely  al- 
leged attack  of  insanity  be- 
gan in  November,  1896. 

B  y  "t  h  e  certificate," 
First  Q  u  e  s  t  i  o  n  under 
"Fifth,"  p.  45,  infra,  is 
meant  the  Certificate  of 
Lunacy  contained  in  said 
Commitment  Proceedings 
of  1897. 

By  "in  these  proceed- 
ings" Second  Question,  is 
meant  said  Commitment 
Proceedings  of  1897. 

By  "this  petition,"  Third 
Question  under  "Fifth,"  p. 
45,  infra,  is  meant  the  peti- 
tion for  the  commitment  of 
your  petitioner  as  an  in- 
sane person  contained  in 
said  Commitment  Proceed- 
inos  of  1897. 


45 


Third  reversal  of  the  Ap- 
pellate Court  by  the  Court 
below : 

"Fifth  assi«>mueiit :  That 
the  said  Court  erred  in  sus- 
tainiui*  the  objeotious  of 
couusel  for  defeudant-iu- 
error,  Thouias  T.  Sherinan, 
to  the  following  (|uestions 
read  from  the  deposition  of 
Anielie  Rives  Troubetzkoy 
and  put  to  the  said  witness 
by  counsel  for  plaintilf-in- 
error. " 

"(^.  In  the  certificate, 
commencing  at  line  lJ05,  it 
is  stated  that  there  was  one 
previous  attack,  presum- 
ablv  referring  to  lunacy;  do 
you  know  anvthiuii  about 
this  charge? 

Q.  In  these  proceedings, 
under  the  statement  of 
facts  alleged  against  the 
plaintiff,  were  the  follow- 
ing: 1st.  That  'Mr.  J.  A. 
Chanler  has,  for  several 
months,  while  at  his  iiome 
in  Virginia,  been  acting  in 
a  very  erratic  manner' — 
this  refers  to  his  conduct 
presumably  for  the  several 
months  preceding  tlie  trial 
in  New  York  'in  1S97? 
Please  state  whether  or  not 
vou  have  any  information 
concerning  this  allegation? 

Q.     It  is  then  alleged  in 


162  Fed.  Rep.,  19  (p.  40, 

.siiitra)  : 

"But  that  in  case  all  the 
issues  except  with  respect 
to  the  validity  and  effect  of 
the  said  orders  of  the  Su- 
prcnne  Court  of  New  York 
and  of  the  justice  thereof, 
be  eliminated  within  sixty 
days  then  said  writ  of  pro- 
tection do  not  issue."* 

By  "The  said  order  of  the 
'Justice    thereof    is    meant 
the  1897  Commitment  Pro- 
ceedings in  which  the  or- 
der   for    your    petitioner's 
commitment  to  "Blooming- 
dale"   Insane  Asylum  was 
made  by  Mr.  Justice  Henry 
A.  (rildersleeve,  aforesaid, 
fully  described  in  162  Fed. 
Rep.,  19,  under  the  caption 
"  ( 1 ) ,"  p.  34,  supra,  further 
supported  by  the  following 
language    of    the    learned , 
United  States  Circuit  Court 
of  Appeals,  p.  38,  supra,  to- 
wit :  "But  he  states  a  cause 
of  action.     He  asserts  that 
the  order  was  wholly  void 
for  want  of  jui-isdiction." 

//  /.s',  (if  course,  eleinen- 
tari/,  til  at  fraud  is  jarisdic- 
tioiiaJ. 


*Said  issues  remain  in  statu  quo. 


46 

this  petition  in  these  pro- 
ceedings that  he  has  limited 
himself  to  a  peculiar  diet — 
during  the  period  that  you 
knew  and  were  married  to 
him  please  state  what,  if 
anything,  was  peculiar 
about  his  diet? 

Q.  During  that  period 
the  chief  or  only  peculiar- 
ity about  his  diet  was  the 
fact  that  he  Avas  a  vege- 
tarian ? 

Q.  It  is  then  alleged  that 
'he  gives  as  a  reason  for 
these  and  other  acts  that  he 
is  inspired  by  a  spirit  which 
directs  him.'  What  do  you 
know  of  this  allegaticm? 

Q.  Have  you  any  reason 
for  saying  that  you  can't 
think  of  him  as  having  said 
that? 

Q.  Did  he  ever  do  any- 
thing to  suggest  to  you  that 
he  had  delusions? 

Will  you  please  state 
what  was  his  general  tem- 
perament —  excitable  or 
otherwise? 

Q.  Is  he  any  more  excit- 
able or  high  strung  than 
the  others? 

Q.  Have  you  ever  heard 
anv  rumors  that  affected 
his  sanity? 

Q.  It  is  next  alleged  that 
he  was  confined  at  Neuilly, 
near  Paris,  France,  some 
vears  ago,  for  a  short  time ; 


47 


please  state  whether  or  not 
this  is  true? 

Q.Will  you  explain  what, 
if  anything,  could  have 
been  a  basis  for  this 
charge? 

Q.  Then  you  state  that 
he  was  only  at  Neuilly  once 
and  that  time  to  see  a 
friend  ? 

Q.  Was  he,  or  not,  a  very 
energetic  man? 

Q.  In  this  certificate  of 
lunacy  they  state  that  he 
was  excited,  armed,  threat- 
ens people,  is  dangerous; 
during  the  period  that  you 
knew  him  did  he,  or  not, 
ever  do  anvthing  to  indi- 
cate  that  he  Avas  danger- 
ous?" 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


48 


Fourth  reversal  of  the 
Appellate  C'oiirt  by  the 
Court  below : 

''Sixth  assignment:  That 
the  learned  Court  erred  in 
ruling  that  it  has  nothing 
to  do  with  the  case  what- 
ever,    'that    she     (Anielie 
Rives    Troubetzkoy)      was 
with     him     at    that     time 
(  N  e  u  11 1  y  ,    near  Paris, 
France,  some  years  ago,  for 
a  short  time),  and  knows 
all   the   facts  and   circum- 
stances and  that  that  is  a 
false  statement  in  the  pa- 
pers that  c<mnnitted  him' 
(to-wit:  'that  he  was  con- 
fined at  Neuilly,  near  Paris, 
France,  some  years  ago  for 
a  short  time.')." 


162  Fed.  Rep.,  19  (p.  39, 

supra)  : 

•'The  defendant  joins  is- 
sue upon  the  fact  of  sanity 
after  the  New  York  orders 
were  made." 


To  which  rulings  of  the 
learned  Court,  counsel  for 
the  plain tilf-in-error  duly 
excepted. 


49 

Fifth  irveisal  of  llu'  Ap-         1()2  Fed.  Rep.,  19  (p.  39, 
pellatc  Court  by  tlie  (\n\vt     supra)  : 
below :  "The  (lefeiHhiiit  joins  is- 

"Seventh        assi.niiinent :     sue  iiixm  the  fact  of  sanity 
That  the  said  Court  erred     after  tlie  New  York  orders 
in     sustaining     the    objec-     'A'ere  made." 
tions  of  counsel  for  the  de- 
fendant-in-error,      Thomas 
T.  Sherman,  to  the  folh)w- 
in<>  questions  put  by  conn- 
sel    for    the    })Iaintiff-in-er- 
ror,   to  the   witness   Pedro 
N.  Piedra."* 

"Q.  Was  Mr.  dohn  Arm- 
strong- Chaloner  at  any 
time  ^\iien  you  were  serv- 
ino  in  that  eapacity  with 
him,  an  insam^  person? 

Q.  Have  you  attended  uj)- 
upon  other  insane  men? 

Q.  How  many  of  them? 

Q.  What  was  his  physi- 
cal condition  at  that  time? 

Q.  Did  you  have  any  con- 
versation with  the  doctor 
in  charii.e? 

Q.  About  the  condition 
of  Mr.  (Mial(mer? 

Q.  Did  you  have  any  con- 
versation with  tlie  doctoi- in 
char<.l('  over  there  about 
Mr.  (Miah)ner's  beinj>-  heard 
or  examined  anywhere? 

Q.  Did  you  observe  his 
actions?" 

To  which  rulings  of  the 
learned  Court,  counsel  for 
the  ])hiiutitf-in-error  dnly 
excepted . 

*A  trained  nurse  in  tlie  Asylum  in  charge  of  your  petitioner,  at 
the  time  the  1899  proceedings  were  had  against  your  petitioner's 
sanity.      (Transcript  of  Record,  pp.  30-33.   fols.   57-61.) 

(4) 


50 


t^ixth  reversal  of  the  Ap-         162  Fed.  Rep.,  11)  (p.  39, 
pel  late  Court  by  the  Court     supra) 


below : 

"Eighth  assigniuent: 
That  the  said  Court  erred 
in  sustaining-  the  objection 
of  counsel  for  the  defend- 
ant-in-error,  Thomas  T. 
Sherman,  to  the  admission 
of  any  evidence  by  the  wit- 
ness, Pedro  N.  Piedra,  con- 
cerning any  physical  or 
mental  condition  of  Mr. 
John  Armstrong  Chaloner 
at  or  about  the  time  of  his 
confinement  at  'Blooming- 
dale'  Asvlum,  in  May, 
1899." 

To  which  rulings  of  the 
learned  Court,  counsel  for 
the  plaintiff-in-error  duly 
excepted. 


"The  defendant  joins  is- 
sue upon  the  fact  of  sanity 
after  the  New  York  orders 
were  made." 


51 


Seventh  reversal  of  the 
Appellate  Court  by  the 
Court  below : 

"Ninth  assignment :  That 
the  said  Court  erred  in  rul- 
ino-  that  the  sanitv  of  the 
plaintiff-in-error  after  the 
New  York  orders  were 
made,  was  not  in  issue." 

To  which  ruling'  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


1G2  Fed.  Rep.,  19  (p.  39, 
supra) : 

"The  defendant  joins  is- 
sue upon  the  fact  of  sanity 
after  the  New  York  orders 
were  made." 

Furthermore  ( p.  30,  su- 
pra) : 

"And  he  came  into  that 
Court  with  a  decree  of  the 
Court  of  the  State  of  which 
he  was  a  citizen  declaring 
his  sanity.  We  cannot  dis- 
regard that  decree." 

^(  Marked  Plaintiff's  "Ex- 
hibit 7"  for  identification 
by  the  Court  below;  an  ex- 
emplified copy  of  the  1901 
Proceedings  in  the  County 
('ourt  of  Albemarle  Coun- 
ty, Virginia.) 


52 


hjUjhth  reversal  of  the 
Appellate  Conrt  by  the 
( 'oiirt  below : 

"Tenth  assliiiuiient :  That 
the  said  Couit  eii-ed  in  sns- 
taininii  the  objection  of 
eounsel  for  (U'fendant-in- 
error,  Thomas  T.  Sherman, 
to  the  admission  in  evi- 
dence on  the  ]>art  of  ]dain- 
tiff-in-ei-ror,  of  a  certain  ex- 
emplified copy  of  the  rec- 
ord of  procee«linjLis  in  the 
State  of  Viroinia,  entitled 
'In  the  matter  of  John 
Armstrong  Chaider'  and  re- 
ferred to  in  the  evidence  as 
'The  Virj»inia  Decree  of 
Sanity.'  " 

To  which  rnlini*  of  the 
learned  Conrt  connsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


102  Fed.  Rep.,  19  (p.  39, 
sujira }  : 

"The  defendant  joins  is- 
sne  ni)on  the  fact  of  sanity 
after  the  New  York  orders 
were  made.'' 

Furthermore  {ct  seq.,  su- 
l>ra )  : 

"And  also  sets  np  that 
the  ^^iriiinia  decree  Avas  ob- 
tained bv  collusion  and  is 
void.'' 

Furthermore  (  p.  36,  su- 
pra) : 

"And  he  came  into  that 
( 'ourt  \\  ith  a  decree  of  the 
( Nnu-t  of  the  State  of  which 
he  was  a  citizen,  declaring 
his  sanity.  We  cannot  dis- 
reiiard  that  decree." 


53 


Xitifli  reversal  of  the  A])-  l(i2  Fed.  Kep.,  11)  (p.  :U», 

pel  lute  Court  by  the  Court      .sii/tni  )  : 
below :  "The  (lefeiulant  joins  is- 

"Eleveiith      assi,i»iiiiieiit :     sue  upon  the  fact  of  sanity 
The  learned  Court  erred  iu     altei-  the  New  York  orders 
sustainin«»-  the  objection  of     were  made." 
counsel  for  the  defen<lant- 
in-erroi-,  Thomas  T.   Sher- 
man,  to  the  admission  of 
the  order,  that  is  the  decree 
of   the   Virginia    Court   as 
to  the  sanity  of  the  plain- 
tiff-in-error.      offered      by 
counsel  for  the  plaintiff-in- 
error.'' 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintitf-in-error  duly  ex- 
i-epted. 


54 


Teyith  reversal  of  the  Ap-         162  Fed.  Rep.,  19  (p.  39, 
pellate  Court  by  the  Court     supra)  : 


below : 

"Twelfth  assignnieut : 
The  learned  Court  erred  in 
rulinj;  that  'the  question  of 
whether  he  is  sane  or  in- 
sane now,  or  has  been  at 
any  time  in  the  past,  is  an 
abstract  question  and  en- 
tirely immaterial  to  this 
case.'  " 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


"The  defendant  joins  is- 
sue upon  the  fact  of  sanity 
after  the  New  York  orders 
were  made." 


55 


Eleventh  reversal  of  the 
Appellate  Court  by  the 
Court  below : 

"Thirteenth  assignment : 
The  said  Court  erred  in 
ruling  'that  the  Supreme 
Court  of  New  York  State 
is  the  only  Court  that  can 
supersede  the  inquisition 
and  restore  the  money  and 
property  to  Mr.  Chal- 
oner.'  " 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 

Thus  the  following  oc- 
curred in  the  Court  below  : 

"The  Court :  You  offer  to 
prove  that  the  man  is  sane. 
Now,  I  say  I  will  admit 
no  evidence  on  that  sub- 
ject. You  take  your  excep- 
tion. You  offer  to  prove 
that  he  was  declared  sane 
by  this  Court  in  Virginia. 

"I  refuse  to  take  any  evi- 
dence on  that  subject,  as 
immaterial,  and  vou  take 
your  exception.''  (Tran- 
script of  Record,  fol.  110.) 


162  Fed.  Rep.,  19  (p.  87, 
supra)  : 

"The  next  objection  is 
that  the  petitioner  ought  to 
a]»i)ly  to  the  ( 'ourts  of  the 
State  of  New  York  for  the 
recision  of  the  orders  com- 
mitting him  to  the  asylum 
and  appointing  a  commit- 
tee of  his  person  and  prop- 
erty. We  have  not  the 
slightest  doubt  that  full 
justice  would  be  done  the 
petitioner  should  he  submit 
himself  to  the  jurisdiction 
of  the  State  Courts.  But 
to  assume  that  he  was  un- 
der any  obligation  to  resort 
to  them  is  to  beg  the  whole 
question  at  issue." 

Furthermore  (p.  35,  su- 
pra) : 

"The  Constitution  of  the 
TTnited  States  vests  in  its 
judicial  department  juris- 
diction over  controversies 
l)etween  citizens  of  differ- 
ent States.  The  petitioner, 
as  a  citizen  of  the  State  of 
Virginia,  in  bringing  his 
said  suit  in  the  Circuit 
Court  of  the  United  States 
was  availing  himself  of  a 
right  founded  upon  this 
constitutional  provision." 

Furthermore  (p.  38,  su- 
pra) : 

"The  petitioner  was 
given  the  right,  under  the 
laws  of  the  United  States, 
to  try  his  case  in  the  Courts 
of  the  United  States.  He 
is  not  permitted  to  exercise 
that  full  right,  and  the 
Court  in  effect  is  not  per- 
mitted to  exercise  its  fuH 
jurisdiction." 


56 


Twelfth  reversal  of  the 
Appellate  Court  by  the 
Court   below: 

"Nineteenth  assignment : 
The  learned  Court  erred  in 
excluding  any  and  all  evi- 
dence offered  or  to  be  of- 
fered tending  to  show  the 
sanity  of  the  plaintiff,  and 
any  and  all  evidence  of- 
fered or  ,to  be  offered  tend- 
ing to  show  that  the  plain- 
tiff ^^'as  lured  into  New 
York  State." 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


1G2  Fed.  Rep.,  19  (p.  39, 
.supra)  : 

"The  defendant  joins  is- 
sue upon  the  fact  of  sanity 
after  the  New  York  orders 
were  made." 

Furthermore :  In  offset 
to  the  fraud  and  trickery 
em]>loyed  by  the  late  Stan- 
ford White,  at  the  instiga- 
tion of,-  and  in  collusion 
with  the  entire  Chanler 
family,  male  and  fenmle,  in 
luring  your  petitioner  from 
his  then  home  in  Vii'ginia, 
into  the  foreign — and,  as 
«*vents  proved,  hostile — jur- 
isdiction of  the  State  of 
New  York,  as  offset  to  said 
palpable  fraud,  your  peti- 
tioner res])ectfully  submits 
the  following  language  of 
the  learned  United  States 
Circuit  Cour-t  of  Appeals, 
page  38,  supnt,  to  wit : 
"F)Ut  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void 
for  want  of  jurisdiction." 

//  is,  of  course,  elemen- 
turij,  that  fraud  is  jurisdic- 
tional. 


57 


Thirteenth  reversal  of 
the  Appellate  Cour.t  by  the 
Court  below : 

"Twenty-second  assign- 
ment :  The  learned  Court 
erred  in  excluding  the  offer 
of  counsel  for  the  plaintiff- 
in-error  to  show  that  the 
whole  proceeding  which 
embodies  both  records,  the 
1899  proceeding  is  void  on 
its  face,  'for  twentv-odd 
other  reasons  which  in- 
volve due  process  of  law.'  " 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


1(52  Fed.  Rep.,  19  (p.  :j8, 
supra) : 

"But  he  states  a  cause  of 
action,  lie  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction.  And 
if  they  were  void  they  were 
of  no  effect,  and  the  peti- 
tioner had  a  right  to  assert 
their  invaliditv  in  anv 
Court." 

This  Brief  contains 
nineteen  points  of  law,  the 
four  following  of  which  are 
basic,  to  wit :  9,  11,  12,  17, 
and  will  be  found  under 
caption,  "The  Nineteen 
Points  of  Law"  :  infra,  en- 
titled, respectively :  No- 
tice; Constitutional  Neces- 
sity for  Opportunity  to 
Appear  and  be  Heard ;  Il- 
legality of  Trials  in  ab- 
sentia; and  Insanity  Judg- 
ment not  a  continuing  one. 


58 


Fourteenth  reversal  of 
the  Appellate  Court  by 
the  Court  below : 

"Twenty-third  assign- 
ment: The  learned  Court 
erred  in  excluding  all  the 
evidence  to  show  that  all 
the  proceedings  against  the 
plaintiff-in-error  were  by 
virtue  of  fraud  and  con- 
spiracy." 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


162  Fed.  Rep.,  19  (p.  38, 
supra) : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void 
for  want  of  jurisdiction. 
And  if  they  were  void,  they 
were  of  no  effect,  and  the 
petitioner  had  a  right  to 
assert  their  invalidity  in 
any  Court." 

7^  is,  of  course,  elemen- 
tary, that  fraud  is  jurisdic- 
tional. 


59 


Fifteenth  reversal  of  the         162  Fed.  Rep.,  19  (p.  38, 
Appellate    Court    by    the     supra)  : 
Court  below  :  "But  he  states  a  cause  of 

"Twenty-fourth     assii>n-     action.    He  asserts  that  the 
ment :     The  learned  Court     orders  were  wholly  void  for 
erred  in  sustaining  the  ob-     want  of  jurisdiction." 
jection  of  counsel  for  the         //   is,  of  course,  elemen- 
defendant-in-error    to    the     tarn  that  fraud  is  jurlsdic- 
following     question     read     tioiial. 
from     the     deposition     of 
John  B.  Dickinson,  M.  D., 
and  put  to  the  witness  by 
counsel  for  the  plaintitf-in- 
error : 

"Q.  Please  state  what  is 
the  present  color  of  the 
plaintiff's  eyes?" 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted." 


60 


Sixteenth  reversal  of  the 
Appellate  Court  by  the 
Court  below : 

"Twentv-iifth  a  s  s  i  o'  n- 
uient :  The  learned  Court 
erred  in  excluding-  evidence 
to  show  that  the  evidence 
of  the  alienists  upon  which 
the  plaintitf-in-error  was 
committed,  was  false  aiid 
perjurious  and  fraudulent 
bearing  upon  the  bona  fides 
and  that  it  deceived  and 
misled  the  Court  and  in  rul- 
ing that  said  evidence 
should  have  been  given  on 
the  trial  of  the  case  ( mean- 
ing on  the  trial  of  the  New 
York  State  proceedings)." 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


162  Fed.  Rep.,  19  (p.  38, 
supra)  : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction.  And 
if  they  were  void  they  were 
of  no  effect,  and  the  peti- 
tioner had  a  right  to  assert 
their  invalidity  in  any 
Court." 

It  is,  of  course,  elemen- 
tarij,  that  fraud  is  jurisdic- 
tional. 


61 


Seventeenth  reversal  of 
the  Appellate  Court  by  the 
Court  below : 

"Twenty-sixth  assign- 
ment :  The  learned  Court 
erred  in  rulino-  that  the 
Court  could  not  try  over 
there,  the  question  which 
was  tried  before  the 
Sheriffs  Jury.* 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff -in-error  duly  ex- 
cepted." 


1()2  Fed.  Kep.,  19  ( p.  IM, 
supra )  : 

''The  next  objection  is 
that  the  petitioner  ought  to 
apply  to  the  Courts  of  tlie 
State  of  New  York  for  the 
recision  of  the  orders  com- 
mitting him  to  the  asylum 
and  appointing  a  commit- 
tee of  his  person  and  prop- 
erty. We  have  not  the 
slightest  doubt  that  full 
justice  would  be  done  the 
petitioner  should  he  submit 
himself  to  the  jurisdiction 
of  the  State  Courts.  But 
to  assume  that  he  was  un- 
der any  obligation  to  resort 
to  them  is  to  beg  the  whole 
(luestion  at  issue."" 

Furthermore  ( p.  35,  su- 
pra) : 

"The  Constitution  of  the 
United  States  vests  in  its 
judicial  department  juris- 
diction over  controversies 
between  citizens  of  differ- 
ent States.  The  petitioner 
as  a  citizen  of  the  State  of 
Virginia  in  bringing  his 
said  suit  in  the  Circuit 
Court  of  the  Ignited  States 
was  availing  himself  of  a 
right  founded  upon  this 
constitutional  i)rovision." 

Furthermore  (p.  38,  su- 
pra) : 

"The  petitioner  was  given 


*The  1899  Proceedings   (Transcript  of  Record,  pp.  66-146,  fols. 
126-279). 


62 


the  right  under  the  laws  of 
the  United  States,  to  trv 
his  case  in  the  Courts  of 
the  United  States.  He  is 
not  permitted  to  exercise 
that  full  right,  and  the 
Court,  in  effect,  is  not  per- 
mitted to  exercise  its  full 
jurisdiction." 


63 


Eighteenth  revernal  of 
the  Appellate  Court  by  the 
Court  below : 

''Tweuty-seventh  assign- 
ment :  The  learned  Court 
erred  in  excluding  the  testi- 
mony of  Winthrop  Astor 
Chanler,  taken  bv  the  de- 
fense  in  this  case,  tending 
to  show  fraud  in  the  com- 
mitment of  the  plaintiff-in- 
error,  and  tending  to  show 
that  the  plaintiff-in-error 
was  lured  into  the  jurisdic- 
tion of  the  State  of  New 
York. 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted."" 


162  Fed.  Rep.,  19  (p.  38, 
supra)  : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction." 

It  is,  of  course,  elemen- 
tary, that  fraud  is  jurisdic- 
tional. 


64 


Niiietceiitli  reversal  of 
the  Appellate  ^'ourt  by  the 
( 'ourt  below : 

"Twenty-eighth  assign- 
iiieut :  The  learned  Court 
erred  in  sustaining-  the  ob- 
jection of  counsel  for  de- 
fendant-] n-erroi'  to  the  fol- 
lowing question  read  from 
the  deposition  of  Winthrop 
Astor  ('hauler,  and  put  to 
said  witness  bv  counsel  for 
the  plaintitf-in-error. 

'Q.  How  long  is  it  that 
you  liave  been  estranged?' 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintitf-in-error  duly  ex- 
cepted." 


162  Fed.  Rep.,  19  (p.  38, 
supra) : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction." 

It  is,  of  course,  elemen- 
tary,  that  fra/ud  is  jurisdic- 
tional. 


65 


Twentieth  reversal  of 
the  Appellate  Court  by  the 
Court  below: 

"Twenty-ninth  ,  assign- 
ment :  The  learned  Court 
erred  in  sustaininji  the  ob- 
jection of  the  counsel  for 
the  defendant-in-error  to 
the  following  question  read 
from  the  deposition  of  Win- 
throp  Astor  Chanler,  and 
put  to  said  witness  by  the 
counsel  for  the  plaintiff-in- 
error. 

'Q.  You  have  had  quar- 
rels with  your  brother, 
haven't  you?'  " 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintitf-in-error  duly  ex- 
cepted. 


l()2Fed.  Rep.,  n  (p.  38, 

siiijra)  :    '"    '     ■    '    ■    : '    ■"'  ' 

''But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction." 

It  is,  of  course,  elemen- 
tory,  that  fraud  is  jurisdic- 
tional. 


{'» 


66 


ru7cnty-first  reversal  of 
the  Appellate  Court  by  the 
Court  below : 

"Thirtieth  assignment : 
The  learned  Court  erred  in 
sustaining-  the  objections  of 
counsel  for  the  defendant- 
in-error  to  the  following 
questions  read  from  the 
deposition  of  Winthrop  As- 
tor  Chanler,  and  put  to 
said  witness  by  counsel  for 
the  plaintiff-in-error. 

'Q.  Was  there  an  alterca- 
tion between  you  at  that 
meeting  at  which  he  kicked 
you  out,  as  you  say?' 

Q.  Well,  wasn't  there 
some  quarrel  between  you 
with  reference  to  a  sugges- 
tion that  plaintiff  made 
about  an  examination  of 
the  books  of  your  father's 
estate? 

Q.  And  this  was  about 
the  time  of  this  meeting? 

Q.  Well,  now,  will  you 
tell  us  what  you  remember 
of  that? 

Q.  Lewis  is  the  other  pe- 
titioner (L.  S.  Chanler)? 

Q.  Wasn't  there  really  a 
good  deal  of  ill  feeling  be- 
tween all  the  members  of 
your  family  on  the  one 
hand,  and  John  Armstrong 
Chanler  on  the  other  hand, 
ever  since  his  marriage? 

Q.  Wasn't  there  consid- 
erable complaint  among 
your  brothers  and  sisters 
that  they  were  not  invited 
to  his  wedding? 


162  Fed.  Rep.,  19  (p.  38, 
supra)  : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction." 

It  is,  of  course^  elemen- 
tary, that  fraud  is  jurisdic- 
tional. 

The  fraud  in  the  above  is 
further  heightened  and  ac- 
centuated by  the  fact  that 
Winthrop  Astor  Chanler, 
and  the  two  other  peti- 
tioners, namely,  Lewis 
Stuyvesant  Chanler  and 
Arthur  Astor  Carey,  had 
never  set  foot  in  your  peti- 
tioner's then  home,  "The 
Merry  Mills,"  Cobham,  Va., 
where  said  falsely  alleged 
actions  by  your  petitioner 
were  sworn  to  have  oc- 
curred. N.  B.  As  of  their 
oirfi  knoniledfje,  that  the 
said  three  petitioners  icit- 
ncssed  the  said  falsely  al- 
leged actions,  and  heard, 
the  said  falsely  alleged  say- 
ings, falsely  alleged  to  have 
l»een  done  and  said  by  your 
petitioner.  Said  Winthrop 
Astor  Chanler  swore  upon 
cross-examination  that  he 
had  never  visited  a  certain 
place  wherein  they  had  pre- 
viously sworn  that  they 
had  seen  and  heard  certain 
things. 


67 


Q.  Well,  how  iiuiiiy  of  you 
felt  that  way? 

Q.  Then  von  owe  your 
presidency  to  the  votes 
<>iven  by  Mr.  Sherman  as 
committee? 

Q.  Did  he  tell  you  what 
he  raised  this  money  for? 

Q.  Well,  did  you  criticise 
his  raising  money  to  buy 
out  your  brother  Robert? 

Q.  Under  those  circum- 
stances why  didn't  you 
send  Lewis  Chanler  down 
there  to  investigate  vour 
brother's  condition  o  f 
health,  instead  of  going' 
there  yourself  —  wasn't 
Lewis  more  friendly  to  him 
than  you? 

Q.  So  that  Mr.  Carey  had 
not  seen  your  brother  for 
at  least  two  years  prior  to 
the  time  of  the  commit- 
ment? 

Q.  Now,  why  I  ask  you 
that  is,  because  you  prob- 
ably remend)er  that  in  your 
application  for  your 
l)rother's  commitment,  you 
and  Mr.  Lewis  Chanler  and 
Mr.  Carey  signed  a  petition 
in  which  you  state  that 
'Mr.  John  A.  Chanler  has, 
for  several  months,  while 
at  his  home  in  Virginia, 
been  acting  in  a  very  er- 
ratic manner.  He  has  lim- 
ited himself  to  a  peculiar 
diet;  has  burned  his  hands 
by  carrying  hot  coals  in 
them ;  he  has  devised  many 
peculiar  schemes  such  as  a 
roulette    scheme    to    beat 


68 


Monte  Carlo,  and  he  has 
given  as  a  reason  for  these 
and  other  acts  that  he  is  in- 
spired by  a  spirit  which  di- 
rects him ;  for  the  past 
three  weeks  entirely  he  has 
constantly  talked  of  these 
delusions,  has  neglected  his 
health,  has  injured  his  per- 
son and  has  been  at  times 
Avildly  excited.'  And  then 
all  three  of  you  sign  an  affi- 
davit stating  that  you 
knew  the  contents  of  the 
foregoing  petition,  and  that 
The  same  was  true  of  your 
own  knoAvledge,  except  as 
to  matters  therein  stated  to 
be  alleged  on  information 
and  l>elief,  and  there  are  no 
matters  in  the  petition 
which  are  stated  on  infor- 
mation and  belief;  now, 
how  did  you  come  to  make 
that  affidavit  that  you 
knew  these  facts  of  your 
own  knoAvledge? 

Q.  And  that  the  state- 
ments contained  in  this  pe- 
tition were  very  solemn 
statements? 

Q.  And  that  you  consid- 
ered very  carefully  this 
statement,  didn't  you,  'Mr. 
J,  A.  Chanler  has,  for  sev- 
eral months,  while  at  his 
home  in  Virginia,  been  act- 
ing in  a  very  erratic  man- 
ner ?' 

Q.  And  you  know  wliat 
liomc  means?"' 

To  which  ruling  of  the 
U-arned  Court  counsel  for 
l)]aintift-in-error  duly  ex- 
cc])ted. 


69 

Twenty -second     reversal         162  Fed.  Rep.,  19  (p.  38, 
of  the  Appellate  Court  by     supra)  : 
the  Court  below  :  ''But  he  states  a  cause  of 

"Thirty-tirst  assignment :     action.    Lie  asserts  that  the 
The  learned  Court  erred  in     orders  were  wholly  void  for 
excluding  the  offer  of  coun-     want  of  jurisdiction." 
sel  for  the  plaintiff -in-error 

to  put  the  whole  deposition  It  is,  of  course,  elemeii- 
of  Winthrop  Astor  Chanler  tary,  that  fraud  is  pirisdic- 
in  evidence.  tional 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted." 


70 


Twenty-third  reversal  of 
the  Appellate  Court  by  the 
Court  below : 

*' Thirty-second  assign- 
ment: The  learned  Court 
erred  in  excluding  evidence 
to  prove  lack  of  jurisdic- 
tion, couspirac}'^,  fraud, 
want  of  due  process  of 
law." 

"and  to  prove  the  sanity 
and  competency  of  the 
plain  tiff -in-error" 
"and  to  prove  that  he  was 
lured  into  the  State  of  New 
York ;" 

"and  to  prove  that  the 
plaintiff-in-error  was  un- 
able through  physical  dis- 
ability to  attend  the  1899 
proceedings;  that  said  pro- 
ceedings were  had  Ui  ahsen- 
tia,  that  there  was  no  real 
contest,  and  that  there  was 
fraud." 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


162  Fed.  Rep.,  19  (p.  38, 
supra)  : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction.  And 
if  they  were  void,  they  were 
of  no  effect,  and  the  peti- 
tioner had  a  right  to  assert 
their  invalidity  in  any 
Court." 

Supported  by  the  fact 
that  conspiracy  and  fraud 
arc  jurisdictional. 

(p.  39,  su2)ra)  : 

"The  defendant  joins  is- 
sue upon  the  fiict  of  sanity 
after  the  New  York  orders 
were  made." 

(p.  38,  supra)  : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wliolly  void  for 
want  of  jurisdiction." 

It  is,  of  course,  clenien- 
tary,  that  fraud  is  jurisdic- 
tional. 


71 


Twenty-fonrtli  reversal 
of  the  Appellate  Court  by 
the  Court  below : 

"Thirty-third  a  s  s  i  <»•  n- 
ment :  The  leai'iied  Court 
erred  in  sustaining  the  ob- 
jection of  counsel  for  the 
defendant-iu-error  to  the 
offer  made  by  counsel  for 
plaintiff-in-error  of  the  let- 
ter* from  John  Armstrong 
Chaloner  to  Hon.  Micajah 
Woods,  dated  July  3, 1897." 

To  which  ruling-  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted. 


102  Fed.  Rep.,  19  (p.  39, 

supra)  : 

''Tlie  defendant  joins  is- 
sue upon  the  fact  of  sanity 
after  the  New  York  orders 
were  made." 

Furthermore  (p.  38,  su- 
pra )  : 

"But  he  states  a  cause  of 
action.  He  asserts  that  the 
orders  were  wholly  void  for 
want  of  jurisdiction." 

If  is,  of  course,  el e men- 
far  ij,  fhaf  fraud  is  jurisdic- 
fioiiaJ. 


^Written  by  your  petitioner  while  in  captivity,  of  5,000  words 
or  more,  now  on  file  in  said  Judge  George  C.  Holt's  Court,  in  New 
York,  proving  the  plot — since  fully  established  on  the  said  evidence 
of  the  said  three  petitioners,  Messrs.  Winthrop  Astor  Chanler, 
Arthur  Astor  Carey  and  ex-Lieutenant-Governor  Lewis  Stuyvesant 
Chanler — against  your  petitioner's  liberty  as  well  as  his  sanity, 
which  letter  was  written  within  four  months  of  the  very  inception 
of  your  petitioner's  captivity,  which  lasted  nearly  four  years  there- 
after, and  which  was  intended  by  petitioner's  family  to  last  for 
life.  But  your  petitioner  escaped  at  the  end  of  said  four  years, 
and  thus  frustrated  the  plot  of  his  loving  brothers  and  sisters  to 
seize  your  petitioner's  property  of  a  million  and  a  half  or  more, 
which  letter  fully  establishes  the  plaintiff-in-error's  sanity  at  the 
time  of  his  incarceration;  on  the  strength  of  Mr.  Justice  Harlan's 
opinion  in  the  Runk  case,  infra. 


72 


assign- 


"The  defendant  joins  is- 
sue upon  tlie  fact  of  sanity 
after  the  New  York  orders 
were  made." 


,   Tioeut [/-fifth  reversal  of         162  Fed  Rep.,  19  (p.  39, 
tiie  Appellate  Court  by  the     suprci )  : 
Court  below : 

"Thirty-fourth 
ment :  Thpt  the  said  Court 
erred  in  sustaining  the  ob- 
jeetion  of  counsel,  for  the 
defendant-in-error  to  the 
following-  question  read 
from  the  deposition  of  John 
Armstrong  Clialoner,  and 
put  to  said  witness  by  coun- 
sel for  plaintiff -in-error. 

'Q.  Was  the  work  of 
building  up  the  Town  of 
Roanoke  Rapids  completed 
under  your  supervision  in 
189<)?'* 

To  which  ruling  of  the 
learned  Court  counsel  for 
plaintiff-in-error  duly  ex- 
cepted." 


♦The  allegation  in  the  Commitment  Papers  being  that  your  peti- 
tioner's falsely-alleged  attack  of  insanity  began  in  November,  1896. 
During  which  time  your  petitioner  was  the  "Resident  Director,"  of 
the  Board  of  Directors,  of  the  Corporation  building  said  manufac- 
turing town — as  the  Court  records  prove  (Transcript  of  Record,  pp. 
36-37,  51-52,  fols.  69,  97-98). 


73 


UNPARALLELED   ASSIGNMENTS 

Your  petitioner  respectfully  submits  that  as  no  exact 
parallels  existed  between  the  rulings  of  the  Honorable 
Judge  George  C.  Holt  in  the  Court  below,  and  the  deci- 
sion of  the  Appellate  Court,  to  wit,  this  Honorable 
Court,  as  to  assignments  of  error,  numbers  1,  3,  14,  15, 
16,  17,  18,  20,  21,  35,  3G,  37  and  38,  your  petitioner  re- 
spectfully makes  the  following  comments  on  said  assign- 
ments of  error,  to  wit: 

''First. — That  the  learned  United  States  District 
Court  for  the  Southern  District  of  New  York  erred  in 
sustaining  the  objection  of  counsel  for  defendant-in- 
error,  Thomas  T.  Sherman,  to  the  following  question 
read  from  the  deposition  of  Amelie  Rives  Troubetzkoy 
and  put  to  the  said  witness  by  counsel  for  plaintiff-in- 

error : 

"Q.  What  was  the  condition  of  the  plaintiff's 
health  during  his  marriage  to  you? 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

The  condition  of  plaintiff's  health  while  married  to 
his  former  wife  had  an  important  bearing  on  plaintiff's 
sanity,  and  this  Honorable  Court  declared,  in  162  Fed. 
Eep.,  19:  "The  defendant  joins  issue  upon  the  fact  of 
sanity  after  the  New  York  orders  were  made." 

''Third. — That  the  said  Court  erred  in  sustaining  the 
objections  of  counsel  for  defendant-in-error,  Thomas  T. 
Sherman,  to  the  following  questions  read  from  the  depo- 


sition  of  Amelie  Rives  Troiibetzboy  and  put  to  said  wit- 
ness by  counsel  for  plaintitf-in-error. 

"Q.  Please  state  what,  if  any,  sickness  he  had 
during  that  period? 

"Q.  What  was  the  condition  of  his  health  gen- 
erally (Transcript  of  Record,  p.  26,  fol.  49)? 

"To  which  rulings  of  the  learned  Coiirt  counsel  for 
plaintiff-in-error  duly  excepted." 

The  condition  of  plaintiff's  health  while  married  to 
his  former  wife  had  an  important  bearing  on  plaintiff's 
sanity,  and  this  Honorable  Court  declared,  in  162  Fed. 
Rep.,  19 :  "The  defendant  joins  issue  upon  the  fact  of 
sanity  after  the  New  York  orders  were  made." 

'^Fourteenth. — The  said  Court  erred  in  holding  that  as 
a  matter  of  law,  that  if  the  plaintiff,  John  Armstrong 
Chaloner,  was  in  fact  in  the  city  of  New  York  when  the 
proceeding  for  the  appointment  of  a  committee  was  be- 
gun, the  Supreme  Court  had  jurisdiction  whether  he  re- 
sided there  or  did  not  reside  there. 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

Thaw  case  in  New  Hampshire.*     Fraud,  trickery  and 


*Thaw  Case. 

A  parallel  case  is  found  in  New  York  against  H.  K.  Thaw,  in 
New  Hampshire.  Thaw  escaped  from  Matteawan  into  New  Hamp- 
shire and  was  there  arrested  and  held  by  the  State  authorities,  and 
the  Governor  of  New  Hampshire  was  about  to  turn  him  over  to 
the  New  York  authorities  on  extradition,  when  said  Thaw's  lawyers 
stepped  in,  procured  an  injunction  from  the  Federal  District  Court 
and  prohibited  the  Governor  of  New  Hampshire  from  turning  him 
over  to  the  New  York  authorities.  The  Federal  Court  then  took 
said  Thaw  into  its  custody  and  appointed  a  Commission  in  Lunacy 
to  determine  his  sanity  and  whether  or  not  it  would  be  dangerous 
to  grant  him  bail.  The  said  Commission  found  said  Thaw  sane  and 
safe  to  receive  bail. 


,75 


luring  cases.     Federal   authorities   as    well,    in    Trial 
Brief. 

^^Fifteenth. — The  said  Court  erred  in  holding-  as  a  mat- 
ter of  law  that  *It  is  not  necessary  to  discuss  it  (that  he 
was  lured  into  the  State  for  the  purpose  of  being 
thrown  into  "Blooniingdale" ) ,  Mr.  Sherman  is  not  re- 
sponsible for  the  acts  of  those  who  put  him  in  "Bloom- 
ingdale."  ' 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiif-in-error  duly  excepted." 

Said  Sherman  holds  through  their  acts — it  was 
through  their  acts  alone  that  the  Supreme  Court  of  New 
York  gained  custody  over  him;  and  said  Sherman  is 
the  appointee  of  the  Supreme  Court  of  New  York. 

''Sixteenth.— That  the  said  Court  erred  in  holding  as 
a  matter  of  law  that  it  is  immaterial  whether  or  not  the 
plaintiff  was  lured  into  the  jurisdiction  of  the  State  of 
New  York  for  the  purpose  of  taking  commitment  pro- 
ceedings against  him,  and  in  holding  that  thereupon  a 
proper  proceeding  was  begun  in  the  Supreme  Court 
which  resulted  in  a  judgment  that  the  plaintifP  is  insane, 
and  in  holding  that  that  judgment  is  perfectly  valid,  no 
matter  how  the  plaintiff,  John  Armstrong  Chaloner,  was 
brought  into  the  jurisdiction  of  the  Court. 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

The  learned  Court  did  not  differentiate  between  an 
alleged  and  adjudicated  lunatic.  With  an  adjudicated 
lunatic,  trickery,  fraud,  and  luring  are  permissible,  but 
not  so  wdth  an  alleged  lunatic  who,  ipso  facto,  has  all 
the  rights  thrown  around  any  other  non-criminal  citizen 
(U.  S.  V.  Throckmorton,  infra). 


76 


"Fraud  vitiates  everything,  and  a  judgment  equally 
with  a  contract,  that  is,  a  judgment  obtained  directly  by 
fraud/' 

^'Seventeenth. — The  learned  Court  erred  in  holding  as 
a  matter  of  law  that  the  judgment  rendered  in  the  1899 
proceedings  determined  the  status  of  the  plaintiff,  John 
Armstrong  Chaloner,  and  determined  the  condition  of 
the  plaintiff's  sanity  or  insanity,  and  that  such  deter- 
mination is  a  fact  which  does  not  depend  on  how  the 
plaintiff  was  brought  within  the  reach  of  the  Court,  as 
determining  the  question  of  sanity  or  insanity. 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

Only  if  properly  brought  before  the  Court,  which  was 
not  the  case.     Fraud  and  trickery  and  luring  cases. 

"Insanity  judgment  not  necessarily  permanent"  (162 
Fed.  Rep.,  19). 

^'Eighteenth. — That  the  learned  Court  erred  in  hold- 
ing as  a  matter  of  law  that  no  matter  how  John  Arm- 
strong Chaloner,  the  plaintiff,  came  to  any  particular 
place,  or  how  he  was  brought  or  by  what  fraudulent 
means  he  was  brought  there,  if  it  was  claimed  that  he 
was  insane  or  had  lost  his  reason,  that  the  Court  had 
jurisdiction  over  his  person  and  property. 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

See  Thaw  Case  in  New  Hampshire,  footnote,  p. 
74,  supra. 

The  learned  Court  did  not  differentiate  between  an  al- 
leged and  adjudicated  lunatic.     With    an    adjudicated 


77 


lunatic  trickery,  fraud  aud  luring  are  permissible,  but 
not  so  with  an  alleged  lunatic  who,  ipso  facto,  has  all 
the  rights  thrown  around  any  other  non-:criininal  citi- 
zen,    U.  S.  V.  ThrockmojL'ton,  infra, 

^'Twentieth. — The  learned  Court  erred  in  ruling  as  a 
matter  of  law  that  'the  question  that  he  was  a  resident 
of  another  State,  so  far  as  the  validity  of  the  proceedings 
to  have  him  adjudicated  a  lunatic  is- concerned,  is  in  my 
opinion  entirely  immaterial.' 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-iu-error  duly  excepted." 

The  plaintiff's  constitutional  right  to  go  into  a  Fed- 
eral Court  was  denied  him  by  keeping  him  away  from 
counsel,  as  shown  by  the  letter  to  Captain  Micajah 
Woods  written  by  plaintiff'  within  four  months  of  his  in- 
carceration, July  3rd,  1897.     162  Fed.  Rep.,  19. 

"Twenty-first. — The  learned  Court  erred  in  excluding 
all  the  evidence  offered  to  show  that  John  Armstrong. 
Chaloner  was  not  at  the  time  of    his    commitment    to 
'Bloomingdale,'  a  resident  of  New  York  State. 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

Fraud,  trickery  and  luring.  Thaw  New  Hampshire 
Case.      (See  footnote,  p.  74,  supra.) 

"Thirty-fifth. — That  the  said  Court  erred  in  sustain- 
ing the  objection  of  counsel  for  the  defendant-in-error, 
and  in  striking  out  the  answer  thereto,  read  from  the 
deposition  of  John  xVrmstrong  Chaloner,  and  put  to  said 
witness  by  counsel  for  plaintiff-in-error. 


78 


"Q.  What  was  the  amount  of  your  investment? 

"A.  The  amount  was  actually  in  cash  .$13,000.00, 
the  balance  which  was  on  interest  was  |12,000.00, 
the  interest  being  |720.00  a  year. 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

The  question  and  the  answer  thereto  were  offered  to 
prove  the  sanity  of  the  plaintiff  through  his  good  busi- 
ness judgment  in  a  large  real  estate  investment,  de- 
scribed on  pages  38-39  of  the  Transcript  of  Record  be- 
ginning at  folio  71,  line  5,  etc. 

''The  defendant  joins  issue  upon  the  fact  of  sanity 
after  the  New  York  orders  were  made."  1G2  Fed.  Rep., 
19. 

''Thirty -sixth. — That  the  said  Court  erred  in  holding 
as  a  matter  of  law  that  the  defendant,  Thomas  T.  Sher- 
man, is  not  responsible  for  the  acts  of  those  who  put  the 
plaintiff,  John  Armstrong  Chaloner,  in  the  'Blooming- 
dale'  Asylum  nor  in  any  way  accountable  therefor. 

"To  which  ruling  of  the  learned  Court  counsel  for  the 
plaintiff-in-error  duly  excepted." 

Said  Sherman  holds  through  their  acts — it  was 
through  their  acts  alone  that  the  Supreme  Court  of  New 
York  gained  custody  over  him,  and  said  Sherman  is 
the  appointee  of  the  Supreme  Court  of  New  York. 

''Thirty-seventh. — That  the  learned  Court  erred  in 
holding  as  a  matter  of  law  that  testimony  going  to  prove 
that  John  Armstrong  Chaloner  was  not  at  the  time  of 
his  commitment  to  'Bloom ingdale'  Asylum  a  resident  of 
the  State  of  New  York,  so  far  as  the  validity  of  pro- 


79 

ceedings  to  adjudicate  him  a  lunatic  was  concerned  is 
immaterial,  and  that  the  Court  erred  in  sustaining  the 
objections  of  counsel  for  the  defendant-in-error  to  the 
admission  in  evidence  on  the  part  of  the  plaintilT-in- 
error  of  all  testimony  as  to  the  residence  of  the  plaintiff- 
in-error  in  another  State  at  the  time  of  his  commitment 
to  'Bloomingdale'  Asylum. 

*'To  which  ruling  of  the  learned  Court  counsel  for 
plaintiff-in-error  duly  excepted." 

The  plaintiff's  constitutional  right  to  go  into  a  Fed- 
erar  Court  was  denied  him  by  keeping  him  away  from 
counsel,  as  shown  by  the  letter  to  Captain  Micajah 
Woods,  written  by  plaintiff  within  four  months  of  his 
iiicarceration,  July  3rd,  1897.     162  Fed.  Rep.,  19. 

"TJiirty-eightli. — That  the  learned  Court  erred  in  di- 
recting a  verdict  for  the  defendant-in-error  upon  the 
trial  herein,  and  to  which  ruling  the  plaintiff -in-error  ex- 
cepted. 

"If  the  learned  Trial  Court  erred  in  the  foregoing  37 
points,  it  follows  that  it  erred  in  Point  38." 


so 


ANALYSIS  OF  MAYER,  J^S.,  OPINION  IN  AP- 
PEAL OF   CHALONER  against  SHERMAN 


(A)  Mayer,  J.,  «ays :  ''Known  as  Bloomim>(lale  In- 
sane Asylum'' — Transcript  of  Kecord,  p.  185,  fol.  363. 

This  is  inexact.  Its  legal  name  is :  ''The  Society  of 
the  New  York  Hospital."  This  irregularity  is  gone  into  in 
Transcript  of  Record,  p.  172,  fols.  337-338.  It  also  forms 
Point  10  of  the  Nineteen  Points  in  the  Trial  Brief — 
the  original  printed  Brief  and  Appendix,  written  by 
plaintitt-in-error  in  1902-1904,  and  published  by  plain- 
titf-in-error  in  1905.* 

(B)  Mayer,  J.,  says:  "This  order  was  in  accord- 
ance with  the  Insanity  Law  of  New  York  (Laws  of  1896, 
chapter  545),  which  permits  a  commitment  without  no- 
tice, and  that  statute  has  been  held  to  l)e  constitutional," 
p.  185,  fol.  363. 

Lack  of  notice  is  specifically  declared"  unconstitutional 
in  Wiiid.s-or  v.  McVeigh,  93  U.  S.,  supported  by  Simon  v. 
Craft,  182  U.  S.,  in  which  Chief  Justice  AVIiite  says: 
'*77ic  essential  elements  of  due  process  of  laic  are  notice 
and  opportunity  to  defend.''  Supported  by  the  follow- 
ing cases,  infra.  Matter  of  Georgiana  O.  R.  Wendel — 
King's  Special  Term,  1900.  jMarean,  J.,  said :  "She  had 
no  notice  of  the  application,  either  personal  or  by  sub- 
stituted service — and  tliere  was  no  hearing  at  which 
she  was  either  present  or  represented  hy  any  otliei'  per- 


*In  evidence.  See  Stipulation  as  to  Exhibits.  Transcript  of 
Record,  p.  154,  fol.  301.  "It  is  hereby  stipulated  and  agreed  that 
said  Depositions,  plaintiff's  Brief  and  Appendix  and  all  Exhibits 
marked  for  identification  *  *  *  may  be  and  hereby  are  treated  upon 
the  appeal  herein  as  model  exhibits."  Said  Brief  will  in  future  be 
described  herein  as  plaintiff-in-error's  Trial  Brief. 


81 


son.  Slie  had  been  finally  adjudged  insane,  and  com- 
mitted to  perpetual  restraint,  without  notice  or  hear- 
ing. She  is  deprived  of  her  liberty,  therefore,  without 
due  process  of  law.  The  Insanity  Law,  so  far  as  it  per- 
mits this,  is  in  violation  of  the  Constitution.  Peopleexrcl. 
Elizahcth  Ordway  v.  ^t.  Saviour's  Asylum,  34  Ap.  Div. 
The  Court  said :  '^No  matter  what  may  be  the  ostensible 
or  real  purpose  in  restraining  a  person  of  his  liberty, 
whether  it  is  to  punish — or  to  protect  the  person — such 
restraint  cannot  be  made  permanent  or  of  long  continu- 
ance (plaiutiff-in-error's  restraint  was  from  1897 — 
March  13th — to  May  1st,  1899 — without  notice — and 
from  then  till  his  escape  Thanksgiving  Eve,  1900,  WITH- 
OUT OPPORTUNITY  TO  DEFEND)  unless  by  due 
process  of  law.  A  hearing  or  an  opportunity  to  be  heard 
is  absolutely  essential.  We  cannot  conceive  of  due  pro- 
cess of  law  without  this,  ^yh(lt  reason  emsts  why  a  per- 
son alleged  to  he  iiicompeteiit  or  dangerous  should  not 
hare  an  opportniiil  if  *  *  *  to  contest  I  he  charge  as 
much  as  a  person  accused  of  er'uue'^  The  rif/hts  of  one  are 
as  sacred  and  inviolable  as  the  other.  Shall  e.r  parte 
proof  that  would  only  avail  to  hold  an  alleged  eriminal 
for  trial  be  regarded  as  conclusive  proof  against  a  sup- 
posed unfortunate?  Acts  of  the  Legislature  which  go 
beyond  the  allowance  of  temporary  confinement  and  re- 
straint until  trial  or  hearing  may  be  had,  and  the  ac- 
cused person  have  this  day  in  court  in  some  way  cus- 
tomary or  adequate  to  enable  him  to  present  his  case, 
are  invalid  exercises  of  legislative  powers.  It  surely 
cannot  be  said  that  the  procedure  authorized  by  the  act 
under  which  this  relator  was  committed  and  ^hich 
created  the  wrong  is  due  process  of  law  simply  because 
the  Legislature  chose  to  authorize  that  procedure." 

(C)  Mayer,  J.,  continues:  "It  was  further  ordered 
that  the  commission  be  executed  in  the  County  of  New 
York,"  p.  185,  fol.  364. 

(6) 


82 

.Chaloner  being  in  Westchester  County,  20  miles 
away,  and  on  the  oath  of  Dr.  Samuel  B.  Lyon,  Medical 
superintendent  of  "Bloomingdale"  in  bed  at  the  time  and 
for  three  weeks  previous  thereto,  complaining  of  trouble 
with  his  spine  and  knee.  Dr.  Lyon  on  the  stand  in  the 
1899  Proceedings:  p.  114,  fol.  225,  ibid.  "Q.  When  did 
you  last  see  John  Armstrong  (Jhaloner?  A.  Last  Wed- 
nesday or  Thursday,  about  three  days  ago.  *  *  *  I 
asked  him  if  he  wanted  to  be  present  here ;  he  said  he  was 
physically  unable  to  be  present  on  account  of  pain  in  his 
v^pjiie — and  he  also  said  his  knee  was  affected  in  the  same 
wav,  and  he  would  be  unable  to  come."  p.  115,  fols.  225- 
226.  ''Q.  Did  that  infirmity  really  exist  or  was  it  a  delu- 
sion? A.  I  think  he  has  pain  in  his  spine, — he  did  not  feel 
as  if  he  could  stand  up,  he  has  kept  his  bed  for  over  three 
weeks,  at  least."  p.  118,  fol.  231.  "I  gave  him  the  parole 
of  our  grounds  on  his  honour — he  is  a  very  honourable 
man ;  he  went  out  by  himself  an  hour  or  so — and  then  he 
ceased  to  go  out  because  he  was  physically  unable." 

The  only  inference  from  the  above  Proceeding — the 
serving  of  the  summons  at  such  a  time  and  at  such  a 
place — is  that  Chaloner's  family — who  were  kept  in- 
formed by  Dr.  Lyon  of  his  condition  from  day  to  day — 
chose  such  a  time  and  such  a  place — 20  miles  away  from 
where  he  lay  bed-ridden  and  had  been  U)r  three  weeks 
prior  to  the  receipt  of  the  summons.  Dr.  Lyon  on  the 
stand,  p.  115,  fol.  226 :  "A.  He  has  kept  his  bed  for 
over  three  weeks  at  least."  And  Chaloner,  therefore, 
could  not  have  taken  to  his  bed  as  a  malingerer,  to  sham 
sickness  to  avoid  being  present,  since  there  was  no  jws- 
sihle  icai/  of  his  knowing  of  the  plans  of  his  enemies 
before-hand,  he  not  being  a  prophet — Chaloner's  family 
chose  this  time  when  they  l-nciv  he  was  incapacitated 
from  leaving  his  cell  and  had  been  for  some  three  weeks, 
in  order  to  set  Proceedings  20  miles  off.     Otherwise,  if 


83 


they  had  meant  fairly  by  him,  they  would  have  set  the 
trial  in  the  Court  House  of  Westchester  County  within 
a  short  mile  of  his  cell,  at  White  Plains.  They  wanting 
to  at  least  attempt  to  cure  the  gross  illegality  of  incar- 
ceration for  two  years  without  notice — attempt  to,  at 
least — by  a  hogus  Proceedings  in  which  notice  would  be 
served  on  him,  STKIPT,  HOWEVER,  OF  ALL  OP- 
PORTUNITY TO  BE  HEARD— which  the  United 
States  Supreme  Court  in  Windsor  v.  McVeigh,  93  U.  S., 
denounces  as  a  sham  and  deception,  and  adds  that  if 
notice  is  not  to  be  followed  by  opportunity  to  appear 
and  be  heard,  the  notice  had  better  he  omitted  altogether. 
For  these  bogus  Proceedings  would  enable  a  Judge — like 
the  learned  Julius  M.  Mayer — to  say  in  liis  opinion, 
aforesaid,  p.  188,  fol.  367:  -'The  record  shows  that 
scrupulous  care  was  exercised  in  serving  the  various  no- 
tices of  motions  and  proceedings  on  Chaloner."  "Scru- 
pulous care  was  exercised  in  serving  the  various  notices" 
on  Chaloner  because  scrupulous  care  had  been  exercised 
by  the  Chanler  conspirators  and  their  allied  doctors  and 
lawyers  to  ascertain  that  Chaloner  was  physically  in- 
capacitated from  availing  himself  of  the  notice.  It  tvas 
like  breaking  a  man's  leg  and  then  serving  notice  ow 
him  that  he  must  come  to  court  for  redress  ivhile  suffer- 
ing toith  a  broken  leg  and  unable  to  walk;  that  other- 
wise he  would  lose  his  day  in  court.  No  such  "scrupul- 
ous care"  was  exercised  in  the  Commitment  Proceedings, 
March,  1897,  tvhen  Chaloner  teas  well,  and  able  to  avail 
himself  of  same.  The  Chanler  family  well  knew  that 
Chaloner  was  of  athletic  build  and  given  to  much  exer- 
cise. They  knew  that  this  was  the  first  illness  he  had 
had  in  all  the  two  years  he  had  been  confined  in  "Bloom- 
ingdale,"  and  that  it  behooved  them  therefore — if  they 
intended  to  attempt  to  cure  the  1897  Proceedings  by  a 
bogus  apparent  fair  trial — to  be  sharp  about  it ;  as  Chal- 


84 


oner  might  recover  and  then  would  be  surely  on  hand 
at  any  cost  to  put  out  his  side  of  the  case. 

(D)  Mayer,  J.,  continues:  "It  was  further  ordered 
that  the  Commissioners  might,  in  their  discretion,  dis- 
pense ioith  (lialoiirr's  attendance/'  p.  185,  fol.  364. 

Higlihj  suspicious  proviso,  considerinf/  the  foul  play 
shrouding  these  entire  Chanler  proceedings,  we  respect- 
fully suhniit. 

(E)  Mayer,  J.,  continues:  "The  Medical  Superin- 
tendent testified  that  Chaloner  said  he  was  physically 
unable  to  be  present.  But  the  jury  stated  that  they  did 
not  desire  his  production — thereafter  the  Medical  Super- 
intendent was  again  called  and  stated  that  to  produce 
Chaloner  would  temporarily  do  him  harm  mentally  and 
that  Chaloner  'said  he  did  not  want  to  come  down.'  Dr. 
Carlos  F.  Macdonald  then  testified  that  to  call  Chaloner 
would  'tend  to  aggravate  his  mental  condition."  p.  186, 
fol.  364. 

It  was  only  upon  being  recalled  that  Dr.  Samuel  B. 
Lyon  vouchsafed  the  remark  that  Chaloner  '^said  he  did 
not  want  to  come  down."  M'hen  he  first  took  the  stand. 
Dr.  Lyon  said  Chaloner  merely  stated  the  bare  physical 
reason  which  prevented  his  being  present  (supra). 
"The  Medical  Superintendent  testified  that  Chaloner 
said  he  was  physically  unable  to  be  present."  Also  vide 
(C),  supra.  In  this  particular,  Chaloner's  examination 
of  the  fluctuation  of  the  testimony  of  Drs.  Lyon  (Appen- 
dix, pp.  717-721),  Flint  and  Macdonald  {ihid.,  pp. 
728-769)  re  his  ability  to  be  present,  makes  interesting 
reading  rather,  we  respectfully  submit. 

(F)  Mayer,  J.,  continues:  "Chaloner  claims  that 
*  *  *  he  was  lured  into  the  State  of  New  York  in  1897 
and  was  committed  improperly  without  notice,"  p.  186, 
fol.  365. 

The  learned  Judge  then  proceeds  to  tabulate  all  dial- 


85 


oner's  claims  re  the  invalidity  of  the  1897  Proceedings 
hat  the  learned  Judge  sinks  the  most  important  claim  re 
the  res  gestae  which  was  that  the  entire  testimony  re 
Chaloner's  alleged  insanity  was  by  interested  parties, 
and  perjured  on  the  evidence  and  admitted  imder  cross- 
examination  at  that,  pp.  53-54,  fols.  101-102, 

Furthermore.  (F)  "That  re  the  inquiry  de  lunalico 
in  1899 — all  the  Proceedings  were  void,  among  other  rea- 
sons because  he  was  not  present  before  the  Commission- 
ers and  the  Sheriff's  Jury ;  that  he  always  was  and  now 
is  sane  and  was  so  declared  in  1901  by  a  Court  of  com- 
petent jurisdiction  in  Virginia  and  that,  therefore,  the 
appointment  of  Sherman  was  void." 

Once  more  the  learned  Judge  while  appearing  to  sum 
up  the  allegations  of  Chaloner  against  the  validity  of 
the  1899  Proceedings  sinhs  the  most  important  allega- 
tion of  all,  namely,  because  his  constitutional  right  to 
an  opportunity  to  be  heard  in  his  own  defense  was  denied 
him,  from  the  fact  of  his  trouble  with  his  spine  and 
knee.  Windsor  v.  McVeigh,  93  U.  S.,  and  Himon  v.  Craft, 
182  U.  S. 

(G)  Mayer,  J.,  continues:  "Insanity  is,  of  course, 
not  necessarily  a  continuing  condition,  but  the  trial 
court  was  right  in  holding  that  Chaloner's  present  con- 
dition never  became  an  issue  in  the  case,"  p.  186,  fol. 
365. 

This  reverses  this  Court  by  its  own  members — Chanler 
against  Sherman,  162  Fed.  Rep.,  held  the  precise  con- 
trary. See  '^Seventh  reversal  of  the  Appellate  Court 
by  the  Court  below,"  The  Parallels,  supra.  First 
reversal  of  the  United  States  Circuit  Court  of  Appeals 
by  itself. 

(H)  Mayer,  J.,  continues:  "The  trial  court  was  like- 
wise right  in  excluding  testimony  to  show  the  mental 
condition  of  Chaloner  in  1899  for  that  issue  could  not 


86 

be  litigated  in  this  action  and  was  solely  for  the  New 
York  Courts/'  p.  187,  fol.  365. 

This  reverses  this  Court  by  its  own  members  a  sec- 
ond time.  Chanler  against  Sherman,  162  Fed.  Rep., 
held  the  precise  contrary.  See  ''Sixth  reversal  of  the 
Appellate  Court  by  the  Court  below."  The  Parallels, 
supra.  Second  reversal  of  the  United  States  Circuit 
Court  of  Appeals  by  itself. 

(I)  Mayer,  J.,  continues:  "Whether  or  not  in  1897 
plaintiff  was  lured  into  this  State  was  immaterial,  be- 
cause defendant  was  appointed  not  by  virtue  of  the 
1897  Proceedings,  but  as  successor  to  the  Committee  ap- 
pointed in  the  1899  Proceedings,'^  p.  187,  fol.  365. 

But  the  fraud  and  irregularity  of  the  1897  Proceedings 
tainted  those  of  1899.  In  fact— and  of  record— they 
were  part  and  parcel  of  the  same  identical  Proceedings, 
as  a  glance  at  the  Transcript  of  Record  will  show.  The 
1897  Proceedings  were  specifically  joined  to  and  made 
art  and  part  of  the  1899  Proceedings.  AS  MUCH  AS 
A  FOUNDATION  FORMS  PART  OF  AN  EDIFICE 
SO  MUCH  DO  THE  1897  PROCEEDINGS  FORM 
PART  OF  THOSE  OF  1899.  The  1899  Proceedings 
DEPEND  UPON  AND  CARRY  ON  those  of  1897. 
Lastly  had  it  not  been  for  the  1897  Proceedings  there 
could  have  been  no  Proceedings  in  1899 — it  was  the 
1897  Proceedings  that  made  those  of  1899  possible — 
that  lured  the  plaintiff  into  the  State  of  New  York. 
The  1897  Proceedings  also  were  the  cause  of  the  illness 
which  prevented  his  presence  at  those  of  1899 — the  nerv- 
ous shock  induced  by  tivo  years  illegal  confinement  in  a 
Madhouse. 

(J)  Mayer,  J.,  continues:  "Even  assuming  that 
plaintiff  was  at  all  times  a  resident  of  Virginia,  the 
question  of  his  residence  was  one  of  the  facts  in  issue 
in  the  1899  Proceedings  and  having  been  there  adjudi- 


87 


cated  cannot  be  collaterally  attacked/'  p.  187,  fols.  365, 
366. 

Except  for  fraud.  It  was  So  conclusively  proved  that 
Chaloner  was  a  resident  of  Virginia  that  in:  the  record 
of  the  trial  before  the  learned  Judge  Holt  in  February, 
1912,  THE  COURT  FROM  THE  BENCH  OBkSERVEI) 
THAT  IT  WAS  CONCLUDED  THAT  CHALONER'S 
RESIDENCE  ALWAYS  HAD  BEEN  IN  VIRGINIA. 
(Transcript  of  Record,  pp.  3842,  fols.  73-81.) 

In  short  the  evidetice  at  said  trialwas  overwhelming 
thereanent.  And  yet  it  teas  sworn  in  f//R  1899  Proceed- 
ings that  Chalofiet's  residendCWas  'in  NeW  York,  as  it 
was  likewise  so  sworn  in  the  1897  Proceedings.  Hear 
Mr.  Justice  Miller  of  the  United  States  Supreme  Court 
in  United  States  v.  Throbkhiortoyi,  61  U.  S.,  on  the  sub- 
ject of  collateral  attack  through  the  avenue  of  fraud : 
"There  is  no  question  of  the  general  doctrine  that  fraud 
vitiates  the  most  Solemn  contracts,  documents  and  even 
judgments.  In  cases  where,  by  reason  of  something- 
done  by  the  successful  party  to  a  suit,  there  was,  in  fact, 
no  adversarv  trial  or  decision  of  the  issue  in  the  case — 
these  and  similar  cases  which  show  that  there  has  never 
been  a  real  contest  in  the  trial  or  hearing  of  the  case,  are 
reasons  for  which  a  new  suit  mav  be  sustained  to  set 
aside  an<l  annul  tlu^  former  judgment  or  decree,  and 
open  the  case  for  a  new  and  fair  hearing.  In  all  these 
cases  and  in  many  others  which  have  been  examined^ 
relief  has  heen  y ranted,  on  the  y round  that,  by  some 
fraud  yracticed  directly  upon  the  party  seeking  relief 
against  the  jndgnient  or  decree,  that  party  has  heen  pre- 
vented from  presenting  all  of  his  case  to  the  Court." 
By  the  "fraud  practiced  directly  upon"  Cluiloner  as 
shown  supra — he  had  "been  prevented  from  presenting 
all  of  his  case  to  the  Court"  among  other  things  the  fact 
that  his  residence  was  Virginia  and  not — as  sworn  to 
bv  the  other  side  in  1897  and  1899— New  York. 


88 


(K)  Mayer,  J.,  contiuues :  ''But,  in  any  event  the 
New  York  Court  had  jurisdiction  in  view  of  the  fact 
that  plaintiff  was  Avithin  the  State  and  had  property 
therein  when  the  Proceedings  were  commenced/'  p.  187, 
fol.  366. 

But  not  ivlien  enticed  tvithin  the  confines  of  the  State 
hy  fraud.  Carpenter  v.  Spooner  (N.  Y.  Sup.  Ct.  Rep.), 
717  infra:  "This  Court  will  not  sanction  any 
attempt  by  fraud  or  misrepresentation  to  bring  a 
party  within  its  jurisdiction."  Again  in  the  Glean  Street 
Railway  Company  v.  Fairmount  Construction  Com- 
pany, 55  App.  Div.  1900,  p.  292  infra.  Held  "service 
secured  by  such  means  should  not  be  permitted  to  stand. 
For  the  Court  will  not  sanction  any  attempt  by  fraud 
or  misrepresentation  to  bring  a  party  within  its  juris- 
diction." WycJwff  v.  Packard,  20  App.  N.  C.  120  ( N. 
Y.  City  Court  Special  Term  1887,  infra.)  Held  per 
Ehrlich,  J. :  "The  decisions  are  uniform  that  such  deceit 
vitiates  the  source  of  legal  process,  hut  if  there  were  no 
precedent  exactly  in  point  the  Court  would  not  hesi- 
tate to  make  one  of  the  case  at  bar.'"  Snelliny  v.  Wat- 
rous,  2  Paige  (Ct.)  314  (1830)  infra:  "Where  a  party 
has  not  in  fact  been  guilty  of  any  crime,  this  Court  will 
not  permit  the  complainant  to  resort  to  any  unfair  and 
inequitable  method  to  enforce  the  process  of  attach- 
ment." Baker  v.  Wales,  14  App.  Pr.  Rep.  ( N.  Y.), 
331  N.  Y.  Sup.  Ct.  1873,  Gen.  Term  infra,  Freedman, 
J.,  said  "that  deceit  had  been  used  for  the  purpose  of 
bringing  defendant  within  the  jurisdiction  of  this  Court 
— the  service  of  the  summons  was  therefore  properly 
vacated  and  set  aside."  Laf/rare's  Case.  ih.  p.  333  (  Su- 
preme Ct.  Sped.  Term,  1873)  infra,  held:  "a  party 
brought  within  the  jurisdiction  by  requisition  on  a 
criminal  charge  is  not  liable  to  arrest  in  a  civil  suit 
brought  bv  those  at  whose  instance  the  criminal  Pro- 


89 


ceediiig  was  started."  Metcalf  v.  Clark,  41  Barb.  45 
(1SG4)  per  Boeks,  J.,  infra:  "He  was  enticed  withiu  the 
jurisdiction  of  the  Court  for  a  purpose  to  which  the 
Court  will  not  give  its  sanction — the  Proceeding  was  a 
trick." 

"Analogy  holds  good  in  law,"  is  a  maxim  of  the  law. 
If  Chaloner  had  property  in  China,  and  had  been  enticed 
there  by  interested  parties  who  wished  to  get  him  out 
of  the  way  and  obtain  control  of  that  property  by  means 
of  a  Chinese  Commission-in-Lunacy ;  and  upon  arrival 
certain  Chinamen  had  sworn  that  Chaloner  was  a  resi- 
dent of  China — though  in  fact  of  Virginia  and  that  they 
had  seen  him  do  certain  insane  things  in  Virginia — 
where  it  afterwards  developed  no7ie  of  the  Chinamen 
had  ever  been — whereupon  Chaloner  was  sentenced  for 
life  to  a  Chinese  Madhouse;  and  his  Chinese  property 
put  into  the  hands  of  a  Chinese  Committee — how  lon(j 
would  sp,ch  a  state  of  things  obtain,  once  the  United 
States  Government  got  wind  of  the  situation?  So  far 
as  residence  is  concerned  Virginia  is  as  foreign  to  New 
York  as  China,  and  the  analogy  set  forth  above  regard- 
ing China  is  precisely  what  took  place  in  New  York. 

(L)  Mayer,  J.,  continues:  "The  venue  of  a  Proceed- 
ing is  entirely  within  the  control  of  a  State  in  respect 
of  subject-matter  over  which  a  State  Court  has  sole 
jurisdiction,  and  the  fact  that  Chaloner  had  real  prop- 
erty in  New  York  County  was  enough  to  satisfy  the 
Statute,"  p.  187,  fol.  366. 

But  not  when  enticed  into  the  State  by  fraud.  See  the 
half  dozni  authorities  just  above  cited.  The  learned 
Trial  Court  Judge  appeared  to  lose  sight  of  the  fact  that 
when  Chaloner  was  enticed  to  N'^w  York  he  was  not  an 
.adjudicated  lunatic.  Had  he  been  that,  enticing  would 
have  taken  on  a  very  different  colour — the  same  colour 
indicated  in  Snelliiig  v.  Watrous,  supra.  "Where  a  party 


90 


has  not,  in  fact,  been  guilty  of  any  crime"  the  Court  will 
not  permit  him  to  be  enticed  within  a  jurisdiction;  but 
where  he  lias  been  guilty  of  crime  the  Court  will,  when 
the  accused  is  not  merely  said  to  be  guilty  by  conspiring 
relatives,  l)ut  is  actually  guilty.  Had  Chaloner  been 
legally  found  a  lunatic  in  Virginia  it  Wou\d  liave  been 
perfectly  legitimate  to  entice  him — undei-  proper  con- 
ditions and  for  cause  proper— into  a  foreign  jurisdiction. 
But  until  so  found  legally  no  such  right  exists.  The 
learned  Trial  Court  Judge  admitted  that  it  would  not  he 
laicful  to  entice  ('hah)U('y  into  tlie  jitrisdieiioii  of  New 
York  ill  oi'der  to  collect  a  lircHtif-pre  doJiar  (l(J)t  from 
him;  but  that  it  iroitld  he  to  im])ris<)n  liiiii  for  life,  pro- 
vided the  charge  was  lunacy  made  by  )iis  worst  enemies 
and  perjured  at  that.     (pp.  3?^-42,  fols.  To-SI.) 

(  ^i )  flayer,  J.,  continues:  "The  trial  court  was  also 
correct  in  excluding  testimony  offered  to  show  that  tlie 
testimony  in  the  1899  Procec^dings  was  perjurious.  Tlie 
(juestion  whether  the  alleged  perjurious  testimony  was 
true  Was  necessarily  adjudged  by  the  New  York  Court 
in  finding  the  plaintiff  incouipetent.  This  Court  cannot 
determine  whether  or  not  the  testimony  in  <iuestion  was 
]>erjured  without  trying  over  again  the  very  same  issue 
which  the  New  York  Court  decided  when  it  made  the 
decretal  order  complained  of.  It  is  well  settled  that  the 
fact  that  a  judgment  is  procured  by  false  testiuiony  does 
not  open  it  to  collateral  attack,"  ]).  187,  fol.  'MM\. 

T]w  learned  Judge  Mayer  evidently  (li<l  not,  at  this 
point,  bear  in  mind  that  "THE  (QUESTION  WHETHER 
THE  ALLEGED  PEKJUKIOUS  TE8TT:\I()NY  (in  the 
1899  Proceedings,  as  well  as  in  tlie  original  Proce(Mlings 
in  1897)  ^^'AS  TKTTE"  COULD  NOT  have  been— as  the 
learned  Judge  says  it  was— "NE(^E8SAinLY  AD- 
JUDGED BY  THE  NEW  YOIUv  (M)!  BT  TN  FIND- 
ING THE  PLAINTIFF   INC():\IPETENT,*"   for  three 


91 


reasons.     Fir.H:    Because  the  plaintiff  was  Icept  away 
from  both  said  Proceedings  by  the  machinations  of  his 
family;  in  1897  by  not  being  vouchsafed  notice  of  same, 
and  in  1899  bv  being  kept  awav  from  same  bv  his  family 
having  craftily  set  same  when  plaintiff  was — and  had 
been  for  some  three  weeks  previous  thereto — bedridden, 
and  also  because  plaintiff'  was  not  represented  at  either 
of  said  Proceedings  by  ccmnsel  or— as  m  Hiinon  y.  Craft, 
182  U.  S.,  March  12,  1901,    Opiuwu    by    Chief   Justice 
White — hij  a  (/iiardiaii  ad  lite  in.     Hear  the  language  of 
the  learned  Chief  Justice  thereanent :    "The  Judge  of  the 
Probate  Court,  where  the  Proceedings  in  Lunacy  were 
heard,  since  that  Court,  upon  the  return  of  the  Sheriff' 
and  the  failure  of  the  alleged  lunatic  (Yetta  Simon)  to 
appear  either  in  person  or  by  counsel,  in  order  to  protect 
her  interest,  entered  an  order  a])])ointing  a  guardinn  ad 
ateiii  in  the  matter  of  the  Petition  to  inquire  into  her 
lunacy;  i\m\  an  answer  was  tiled  by  such  guardian  deny- 
ing all  the  nmtters  and  things  stated  and  contained  in 
the  Petition  and  recpiii'ing  strict  proof  to  be  made  there- 
of accordinii  to  law/'    As  said  alreadv.  First:  "because 
the  plaintiff'  was   kept  away  from  both  said  Proceed- 
ings by  the  machinati<ms  of  his  family;  in  1897  l>y  not 
being  vcmclisafed  notice  of  same,  and  in  1899  by  being 
kept  away  from  same  by  his  family  having  craftily  set 
same  when  plaintiff"  was — and  had  been  for  some  three 
weeks  previous   thereto — bed-ridden;  and  also  because 
plaintiff'  was  not  rei)resented  at  eithei-  of  said  Proceed- 
ings by  ('(mnsel,  or — as  in  Simon  v.  Craft,  supra,  by  a 
guardian  ad  litem — for  the  said  sundry  and  various  rea- 
sons, plaiittiff'  iras  titterUj  estopped  and  ahsolntehf  de- 
harred  from  f/etiin;/  Iiis  allegations  eoneerniiiff  the  said 
''the   alleged    perjurious    testimoni/"    before    iJie    Court, 
either  at  the  1897  Proceedings,  or  those  of  1899.    Never 
havinji-  been  brousht  before  tlte  Coui-t,  they  never  u-ere 


92 


before  the  Court;  never  having  BEEN  BEFORE  THE 
COURT  THEY  COULD  NOT  HAVE  BEEN  "NECES- 
SARILY ADJUDGED  BY  THE  NEW  YORK  COURT 
IN  FINDING  THE  PLAINTIFF  INCOMPETENT." 

A  further  proof  of  the  foreiioiuii'  is  that  the  proof  that 
the  testimony  of  the  oiih/  lay  witnesses  a«;ainst  plain- 
tiff's sanity,  namel}^,  that  of  the  tliree  Petitionei's  in  the 
1897  Proceedings,  the  two  first  of  whom  also  joined 
in  bringing  the  1899  Proceedings  to-wit,  said  Wintlirop 
Astor  Chanler,  Lewis  Stuyvesant  Chanler,  and  a  cousin, 
namely,  Arthur  Astor  Carey — the  proof  that  the  testi- 
mony of  the  oulij  lay  witnesses  against  plaintiff's  sanity 
in  either  Proceedings — all  the  other  witnesses  being 
hired  alienists,  paid  out  of  plaintiff's  own  pocket — by 
Court  order — to  find  plaintiff'  insane  (see  affidavit  of  E, 
L.  Winthrop,  Jr.,  pp.  140-142,  fols.  273-277— the  proof 
that  the  testimony  of  these,  aforesaid  three  gentlemen 
was  profoundly  tainted  witli  perjury  is  furnished,  hy 
one  of  their  own  number.  Said  PROOF  OF  PERJURY 
COMING  OUT  OF  THE  VERY  MOUTH,  OUT  OF 
THE  VERY  LrPS  OF  THE  CHIEF  FETFTIONER, 
^AID  WINTHROP  AHTOR  CHANLER,  in  these  very 
Proceedings  of  1899  brought  by  liimself,  to-wit:  p.  132, 
fol.  255.  Winthrop  xVstor  Chanler  on  the  stand  being 
examined  by  his  own  counsel,  Flamen  B.  Candler,  as  to 
value  and  extent  of  plaintiff''s  property.  Mr.  Candler: 
"WHAT  NEXT?  DO  YOU  KNOW  ANYTHING  OF 
HIS  OTHER  PROPERTY,  ABOUT  THE  VIRGINIA 
PROPERTY?"  Answer:  "I  KNOW  VERY  LITTLE 
ABOUT  THAT.  I  KNOW  THAT  HE  HAD  IT,  BUT  I 
HAVE  NEVER  SEEN  IT." 

Whereas  said  three  gentlemen  all  and  severally 
solemnly  swear  of  their  own  knowledge  as  to  certain 
falsely  alleged  acts  and  falsely  alleged  utterances,  irra- 
tional in  nature  upon  the  part  of  plaintiff  as  having 
occurred  and  been   uttered   in   their  presence  at  "Tlie 


93 


Merry  Mills,"  Cobliam,  Albemarle  County,  Viroinla,  the 
home  of  said  John  Armstrong  Chalouer.  Said  gentle- 
men swear  in  said  Petition  that  tlie  plaintilT  "'has  for 
several  months,  while  at  his  home  in  Virginia,  been 
acting  in  a  very  erratic  manner,"  p.  109,  fol.  213.  As  a 
glance  at  the  said  Petition  collectively  sworn  to  by  said 
three  gentlemen  (pp.  108-110,  fols.  212-215,  inclusive) 
proves;  said  entire  aflfidavit  is  made  as  "true  to  the 
knowledge  of  deponents."  And  yet  said  three  gentle- 
men do  not  hesitate  to  swear  concerning  alleged,  acts 
and  utterances  having  occurred  "to  the  knowledge  of 
deponents"  in  a  place  concerning  wliich  the  chief  Peti- 
tioner swears  "I  HAVE  NEVEK  SEEN  IT."  As  will 
be  shown  later,  said  Winthrop  Astor  Chanler  fully  cor- 
roborates his  aforesaid  damaging  admission  in  the  1899 
Proceedings,  by  admitting  under  cross-examination  in 
the  Deposition  <Ie  bene  esse  brought  by  himself  on  or 
about  November,  1905,  on  the  occasion  of  his  wintering 
abroad,  that  not  only  had  HE  never  set  foot  inside  "The 
Merry  Mills" — the  home  of  plaintiff  in  Virginia — but 
neither  of  the  other  two  Petitioners  had  either. 

Here  follows  the  preamble  aforesaid,  to  said  affidavit 
of  ^lessrs.  AVinthrop  Astor  Chanler,  Lewis  Stuyvesant 
Chanler  and  Arthur  Astor  Carey,  pp.  109-110,  fols.  214- 
215. 

"W.  A.  Chanler,  Lewis  S.  Chanler  and  A.  A.  Carey, 
being  duly  sworn,  depose  and  say  that  they  have  read 
the  foregoing  petition  and  know  the  contents  thereof, 
and  that  the  same  is  true  to  the  knowledge  of  deponents 
— except  as  to  the  matters  therein  stated  to  be  alleged 
on  information  and  belief,  and  as  to  those  matters  thev 
believe  it  to  be  true. 
(Signed)  : 

WINTHROP  A.  CHANLER, 
LEWIS  S.  CHANLER, 
ARTHUR  A.  CAREY. 


94 

Subscribed  and  sworn  to  before  me  this  tenth  day  of 
March,  1897. 

(Signed) : 

H.  A.  GILDEKSLEEVE, 

Justice  Supreme  Court.'' 

Said  proof  of  perjury  coming  out  of  the  ver^-  mouth, 
out  of  the  very  lips  of  the  chief  Petitioner,  said  Win- 
throp  Astor  Chauler,  in  these  very  1899  Proceedings,  no 
allegation  concerning  "THE  QUESTION  WHETHER 
THE  ALLEGED  PERJUPvlOUS  TESTI^dOXY  WAS 
TRUE"  could  by  any  human  possibility  be  "AD- 
JUDGED BY  THE  NEW  YORK  COURT  IN  FIND- 
ING THE  PLAINTIFF  INCOMPETENT"  in  these  very 
1 899  Proceedings ;  since  there  was  no  one  who  could  and 
would  bring  forward  said  allegations  concerning  '^"per- 
jurious testimony";  since,  natural Ij^  enough,  Mr.  Win- 
throp  Astor  Chanler's  own  counsel,  said  Flamen  B.  Can- 
dler, would  not  push  forward  any  such  unflattering  and 
unnecessary  charges — from  his  point  of  view,  at  least — 
said  Flamen  B.  Candler  would  be  the  last  man  on  earth 
to  impeach  the  testimony  of  his  own  witness — and  there 
was  no  earthly  way  in  which  plaintiff  could  prefer  said 
charges,  he  being  kept  away  from  court  as  aforesaid, 
by  being  bed-ridden,  and  unrepresented  by  counsel  or — 
as  in  Simon  v.  Craft,  supra, — by  a  guardian  ad  litem, 
appointed  by  the  Court  to  defend  the  interests  of  the 
alleged  incompetent  at  the  said  inquisition  de  hinatico, 
by  whom  an  answer  was  filed  "DENYING  ALL  THE 
MATTERS  AND  THINGS  STATED  AND  CON- 
TAINED IN  THE  PETITION  AND  REQUIRING 
STRICT  PROOF  TO  BE  MADE  THEREOF  ACCORD- 
ING TO  LAW." 

Second:  The  second  reason  why  "THE  QUESTION 
WHETHER  THE  ALLEGED  PERJURIOUS  TESTI- 


95 


MONY  (ill  the  1899  Proceedings)  WAiS  TKUE  could 
not,  as  tlie  learned  justice  says  it  was,  have  been  ''NE- 
(^ESSAKILY  ADJUDGED  BY  THE  NEW  YOKK 
COURT  IN  FINDING  THE  PLAINTIFF  INCOMPET- 
ENT''— was  that  the  perjurious  testimony  in  the  1899 
Proceedings  was  of  two  kinds.  First,  direct ;  Second,  in- 
direct. The  first  was  committed  by  the  other  alienists; 
the  second  by  Dr.  Lyon.  By  which  is  meant  said  Dr. 
Samuel  B.  Lyon  innocently  repeated  falsehoods  which 
had  been  told  to  him  by  members  of  the  Medical  Statf 
of  the  Society  of  the  New  York  Hospital — falsely  known 
as  "Bloomingdale." 

Dr.  Samuel  B.  Lyon,  Medical  Superintendent  of  said 
Hospital,  on  the  stand  in  said  1899  Proceedings  said  in 
reply  to  the  question  of  a  Juror,  p.  118,  fol.  231 :  ''DID 
HE  SHOAV  xVNY  HOMICIDAL  MANIA?"  Answer: 
"HE  THREATENED  TO  KILL  US— TO  KILL  ME; 
HE  NEVER  MADE  ANY  ATTEMPT  UPON  ME." 

It  will  be  noticed  that  Dr.  L^^on  does  not  say  "HE 
TOLD  ME  THAT  HE  WOULD  KILL  ME."  In  other 
words,  this  indirect,  and  therefore  innocent,  perjurious 
statement  was  honestly  believed  by  Dr.  Lyon  because  it 
was  reported  to  Jiiii)  by  one  of  his  Staff.  In  a  word,  it 
was  mere  hearsay  as  regarded  Dr.  Lyon.  But  that  sav- 
ing fact  could  not  well  be  brought  out;  seeing  that  noth- 
ing but  cross-examination  could  possibly  bring  it  out, 
and,  for  reasons  already  fully  gone  into,  cross-examina- 
tion was  totally  out  of  the  (luestion  in  said  Proceedings. 
In  an  excerpt  from  plaintitl's  voluminous  Deposition 
said  absurd  falsehood — reported  to  Dr.  L^aui — is  fully 
explained  infra.  It  was  a  mere  jocularity  upcm  the  part 
of  plaintitf,  who  remarked  to  one  of  the  said  Hospital 
Staff  that  when  he  got  out  he  was  going  to  have  Dr. 
Lyon  and  all  of  them  sent  to  jail  for  false  imprisonment, 
and  he  was  verv  much  afraid  that  the  confinement  of  a 


96 


jail  would  kill  Dr.  Lyon.  It  was  this  perfectly  inno- 
cent and  legitimate  remark  wliicli  was  distorted  into  "He 
threatened  to  kill  us — to  kill  me"  by  the  time  it  reached 
Dr.  Lyon's  ears.  Had  the  plaintiff  had  his  day  in  court 
at  the  1899  Proceedings,  he  has  no  doubt  but  that  Dr. 
Lyon,  upon  cross-examination,  would  have  frankly  ad- 
mitted that  this  and  the  other  material  allegations  made 
against  plaintiff's  sanity  by  Dr.  Lyon  were  mere  hearsay. 
Since  plaintiff  showed  on  the  stand,  at  his  said  Deposi- 
tion, that  Dr.  Lyon  ivas  a  man  of  the  strictest  veracity 
as  regarded  his  dealings  with  plaintiif  lohile  at  said 
Hospital;  and  had,  moreover,  treated  plaintiff"  with  the 
greatest  kindness  and  consideration,  consistent  with  his 
position  as  head  of  the  Asylum  illegally  detaining  him 
in  custody.  Had  said  two  reasons  aforesaid  been  in  the 
mind  of  the  learned  Judge  Mayer,  we  respectfully  sub- 
mit that  the  learned  Judge  would  not  have  said  "THIS 
COURT  CANNOT  DETERMINE  WHETHER  OR  NOT 
THE  TESTIMONY  IN  QI^ESTION  WAS  PERJURED 
WITHOUT  TRYING  OVER  AGAIN  THE  VERY 
SAME  ISSUE  WHICH  THE  NEW  YORK  COURT 
DECIDED  WHEN  IT  MADE  THE  DECRETAL  OR- 
DER COMPLAINED  OF." 

Lastly,  in  this  connection,  the  learned  Judge  says: 
"IT  IS  WELL  SETTLED  THAT  THE  FACT  THAT  A 
JUDG:MENT  IS  PROCURED  BY  FALSE  TESTIMONY 
DOES  NOT  OPEN  IT  TO  COLLATERAL  ATTACK." 
This  is  the  case  only  when  the  issue  of  false  testimony 
has  been  made,  hronght  and  litigated  in  the  same  identi- 
cal proceeding  in  ichich  the  said  judgment  was  procured. 
In  V.  H.  V.  Throckmorton,  snpra,  9S  U.  S.  61,  we  read 
further,  Mr.  Justice  Miller  said:  "Where  the  unsuc- 
cessful party  has  been  prevented  from  exhibiting  fully 
his  case,  by  fraud  or  deception  practiced  upon  him  by 
his  opponent,  as  by  keeping  him  away  from  court,  a  false 


9' 


promise  of  compromise,  or  where  the  defendant  never  had 
knowledge  Qt  the  suit,  being  kept  in  ignorance  by  the  acts, 
of  the  plaintiff  *  *  *  are  reasons  for  which  a  new  suit 
may  be  sustained,  to  set  aside  and  annul  the  former  judg- 
ment or  decree,  and  open  the  case  for  a  new  and  fair 
hearing."  The  learued  Justice  Miller  continues:  "On 
the  other  hand,  the  doctrine  is  equally  well  settled  that 
the  Court  will  not  set  aside  a  judgment  because  it  was 
founded  on  a  fraudulent  instrument,  or  perjured  evi- 
dence, or  for  aufj  matter  which  toas  actiiallij  presented 
and  considered  in  the  judgment  assailed.  Mr.  Wells, 
in  his  very  useful  work  on  Ees  Adjiidicata,  says,  Sec.  499  : 
'Fraud  vitiates  everything,  and  a  judgment  eiiuallj'  with 
a  contract;  that  is,  a  judgment  obtained  directly  by 
fraud.'  "  The  principle  and  the  distinction  here  taken 
was  laid  down  as  long  ago  as  the  year  1702  by  the  Lord 
Keeper  in  the  High  Court  of  Chancery  in  the  case  of 
Tovey  v.  Young  Free,  in  Ch.  193.  This  was  a  bill  in 
chancery  brought  by  an  unsuccessful  party  to  a  suit  at 
law,  which  was  at  that  time  a  very  common  mode  of 
obtaining  a  new  trial.  One  of  the  grounds  of  the  bill 
was,  that  complainant  had  discovered  since  the  trial  was 
had  that  the  principal  witness  against  liim  was  a  partner 
in  interest  with  the  other  side.  The  Lord  Keeper  said: 
"New  matter  may  in  some  cases  be  ground  for  relief;  but 
it  must  not  be  what  was  tried  before; nor,  when  it  consists 
in  swearing  only,  will  I  ever  grant  a  new  trial,  unless 
it  appears  by  deed  or  writing,  or  tliat  a  witness,  on 
ivliose  testimony  the  verdict  teas  gireny  were  conrAct  of 
perjury  or  the  jury  attainted."  As  has  just  been  said, 
"Fraud  vitiates  everything,  and  a  judgment  equally  with 
a  contract;"  note  the  only  exception  except  when  the 
fraud  "was  actually  presented  and  considered  in  the 
judgment  assailed."  And  this  is  further  sustainetl  by 
the  words  of  the  Lord  Keeper  supra  showing  that  per- 

(7) 


98 


jury  on  the  part  of  a  witness — discovered  after  the  judg- 
ment was  rendered — upon  whose  testimony  the  verdict 
was  given,  was  ground  for  a  new  trial  thus :  "Nor  will 
I  ever  grant  a  new  trial  unless  it  appears — that  a  wit- 
ness, on  whose  testimony  the  verdict  was  given,  were 
convict  of  perjury."  Since  said  Winthrop  Astor  Chan- 
ler  was  "convict  of  perjury"  by  his  said  testimony  supra, 
and  his  fellow  Petitioners  in  the  1897  Proceedings,  and 
his  brother  Petitioner  in  the  1899  Proceedings — which 
conviction  is  reinforced  by  said  Winthrop  Astor  Chan- 
ler's  testimony  under  cross-examination  by  the  attorney 
for  plaintiff  in  the  Deposition  de  hene  esse  of  said  Win- 
throp Astor  Clianler  upon  the  occasion  of  his  departure 
for  Elurope  in  the  year  1905,  aforesaid,  pp.  53-54,  fols. 
101-102. 

Q.  "You  probably  remember  that  in  your  applica- 
tion for  your  brother's  Commitment,  you  and  Mr.  Lewis 
Chanler  and  Mr.  Carey  signed  a  Petition  in  which  you 
state  that  'Mr.  J.  A.  Chanler  has  for  several  months, 
while  at  his  home  in  Virginia,  been  acting  in  a  very 
erratic  manner' — and  then  all  three  of  you  sign  an  affi- 
davit stating  that  you  knew  the  contents  of  the  foregoing 
Petition,  and  that  the  same  was  true  of  your  own  knowl- 
edge, except  as  to  the  matter  tlierein  stated  to  be  alleged 
on  information  and  belief;  and  there  are  no  matters  in 
the  Petition  ivhich  are  stated  on  information  and  belief  ; 
now  I  ask  you  how  did  you  come  to  make  that  affidavit 
of  these  facts  of  your  own  knowledge?"  And  since  said 
three  gentlemen  were  the  only  lay  witnesses,  by  whitli 
is  meant  the  only  witnesses  not  alienists  empJoyed  hi/ 
them  in  the  1897  Proeeedings,  and  since  the  plaintiff  was 
incarcerated  as  a  dangerous  maniac  upon  the  said  per- 
jurious testimony  of  said  three  gentlemen  in  1897 — and 
since  the  only  new  allegations  of  insanity  in  the  1899 
Proceedings  were  supported,  purely  and  solely  by  alien- 


99 


ists  in  the  employ  of  the  other  side — by  Messrs.  Austin 
Flint,  Sr.,  Carlos  F.  Macdonald  and  Samuel  B.  Lvon, 
Medical  Superintendent  of  said  Asylum,  the  Society  of 
the  New  York  Hospital;  and  since  the  plaintiff  was  pre- 
pared^had  he  had  his  day  in  Court  in  1899 — to  prove 
the  said  three  alienists  guilty  of  either  direct  or  indirect 
perjury — as  described  above — and  since  plaintiff's  family 
obtained  the  1899  verdict  against  Chalouer  solely  by 
means  of  the  said  perjury — either  direct  or  indirect  upon 
the  part  of  the  said  alienists — the  two  former  of  whom 
Chalouer  charges  in  his  said  Deposition  with  perjury 
explicit  and  unqualified — therefore  the  condition  pre- 
cedent, demanded  by  the  Lord  Keeper,  supra,  before 
granting  a  new  trial,  is  disclosed,  to-wit:  "Unless  it 
appears — tJiat  a  tritness,  on  whose  testimony  the  verdict 
tvas  given,  loere  convict  of  perjury.'' 

(N)  Mayer,  J.,  continues:  *'The  failure  of  a  person 
affected  by  an  order  or  judgment  to  appear  after  due 
notice,  cannot,  of  course,  affect  the  validity  of  an  ad- 
judication," p.  188,  fol.  367. 

A  parallel  is  sought  to  be  instituted  by  the  other  side 
here  between  the  case  of  Chaloner  against  Sherman  and 
Simon  v.  Craft,  182  U.  S.  No  slightest  parallel  exists 
as  will  be  shown  in  an  exhaustive  discussion  of  said 
two  cases  in  Brief-in-Rebuttal  infra.  Let  us  hear  Mr. 
Chief  Justice  White  on  the  subject.  ^^At  the  trial  below 
there  was  no  offer  to  pro  re  by  any  form  of  evidence  that 
Mrs.  Simon  was  in  fact  of  sound  niiiul  when  the  Pro- 
ceedings in  Lunacy  were  instituted :  or  that  she  desired 
to  attend  and  was  prevented  from  attending  tlie  hearing; 
or  was  refused  opportunity  to  consult  with  and  employ 
counsel  to  represent  her.  The  entire  case  is  thus  solely 
based  on  the  inferences  which  are  deduced,  as  stated, 
from  the  face  of  the  return  of  the  Sheriff.  The  writ  was 
dulv  returned,  with  the  following  indorsement :  'Received 


100 


January  31,  1889,  and  on  the  same  day  I  executed  the 
within  writ  of  arrest  by  taking-  into  my  custody  the 
within'  named  Yetta  Simon  and  iiauding  her  a  copy  of 
said  writ,  and  as  it  is  inconsistent  witli  the  liealth  or 
safety  of  said  Yetta  Simon  to  have  her  present  at  the 
place  of  trial,  and  on  the  advice  of  Dr.  H.  P.  Herst- 
field,  a  physician  wdiose  certificate  is  hereto  attached,  she 
is  not  brought  before  *  *  *  the  honourable  Court,  Hal- 
comb,  Sheriff.'"  Mr.  Chief  Justice  White  continues, 
"And  upon  the  assumption  thus  made  it  is  contended 
that  the  statute,  as  well  as  the  proceeding  thereunder, 
were  violative  of  the  clause  of  the  14th  Amendment  to 
the  Constitution  of  the  United  States,  which  forbids 
depriving  anyone  of  life,  liberty,  or  property  without  due 
process  of  law. 

It  is  not  seriously  questioned  that  the  Alabama  statute 
jwovided  that  notiee  should  be  given  to  one  proeeeded 
against  as  being  of  unsound  mind  of  the  eontemplated- 
trial  of  the  question  of  his  or  her  sanity.  As  a  matter 
of  fact,  a  copy  of  the  writ  containing  notice  of  the  date 
of  the  hearing  of  the  Proceedings  in  Lunacy  is  shown 
by  the  Record  to  have  been  served  on  Mrs.  Simon.  Hence 
it  cannot  be  presumed  ///  the  absence  of  all  proof  or  al- 
legation to  that  effect  that  the  sheriff  in  tlie  discharge  of 
this  duty,  after  serving  the  writ  upon  the  alleged  luna- 
tic, exerted  his  power  of  detention  for  the  purpose  of 
prerenting  her  attendance  at  the  hearing,  or  of  restrain- 
ing her  from  availing  herself  of  any  and  every  oppor- 
tunity to  defend,  which  she  might  desire  to  resort  to,  or 
which  she  was  capable  of  exerting." 

Per  contra. 

In  Chaloner  against  8her)Han,  applying  the  exact  lan- 
guage of  the  learned  Chief  Justice — "At  the  trial  below 
(in  1912)  there  was  every  off'er  to  prore  by  every  form 
of  evidence  that  Chaloner  was  in  fact  of  sound  mind 


101 


irlicii  the  Proceedings  in  Lunacy  were  infitituied  {in 
1897)  and  that  he  desired  to  attend  and  teas  prevented 
from  attending  the  hearing''  hy  being  kept  in  i<inoranee 
of  said  hearing  and  receiving  no  notice  thereof.  Also, 
regarding  the  Proceedings  in  1899,  "He  was  refused  op- 
portunity to  consult  with  and  employ  counsel  to  rep- 
resent him."  The  entire  case  of  Chaloiier  against  t^her- 
man  is  thus  solely  based  upon  admittedly  perjured  affi- 
davits, and  perjured  testimony,  offset  by  ivritten  and 
other  acts  of  (7/a/oy/cr  indicating  continued  sanity  for 
over  fifty  years — for  Chaloner's  entire  life — as  well  as 
Court  Recoi'ds  of  the  States  of  Virginia  and  North  Caro- 
lina estahlishing  same.  In  a  word,  there  was  no  hint 
of  foul  play  in  Simon  v.  Craft,  whereas  in  (lialoner 
against  Sherman  there  was  every  indication — hesides 
every  possible  claim  by  Chaloner  of  foul  play  upon  the 
part  of  Sherman  against  him. 

Moreover,  there  was  a  guardian,  ad  litem.,  appointed 
in  Simon  v.  Craft  to  represent  Mrs.  Simon.  There  was 
no  such  safeguard  thrown  around  the  liberty  and  large 
property  rights  of  John  Armstrong  Chaloner  in  either 
the  1897  or  1899  Proceedings. 

(O)  Mayer,  J.,  continues:  "The  record  shows  that 
scrupulous  care  was  exercised  in  serving  the  various 
notices  of  motions  and  Proceedings  on  Chaloner,"  p. 
188,  fol.  367. 

No  notice  whatever  was  served  on  Chaloner  in  the 
initial  Proceedings  of  1897.  In  1899  scrupulous  care 
was  indeed  taken  in  serving  notice  upon  Chaloner  which 
his  family  well  knew  Avas  of  no  avail  to  him  at  that  time, 
owing  to  his  then  physical  illness — from  the  anxiety 
they  proved  they  one  and  all  felt  lest  he  should  get  a 
hearing  in  open  court,  as  shown  by  their  care  and  fore- 
sight in  hiring  lawyers  and  alienists  years  before  Chal- 
oner's escape  from  said  hospital  in  1900  as  shown  in  the 


102 


affidavit  aforesaid  of  said  Egerton  L.  Winthrop,  Jr.,  of 
the  firm  of  Ja}^  and  Candler,  Attorneys,  48  Wall  Street, 
New  York,  setting  forth  a  claim  for  a  fee  of  one  thou- 
sand dollars — to  he  paid,  he  it  underHood,  hy  John 
Armstroufj  Chaloners  estate — in  return  for  the  '^great 
care  and  much  attention"  bestowed  by  said  Winthrop 
in  carrying  out  th6  wishes  of  his  clients,  the  Chanter 
family !     p.  140,  fol.  273. 

It  is  therein  also  shown  that  said  Winthrop  mar- 
shaled the  various  alienists  arrayed  against  Chaloner 
in  the  1899  Proceedings,  thus  (p.  141,  fol.  274)  :  "After 
receiving  the  reports  of  Doctors  Carlos  P.  Macdonald 
and  Austin  Flint,  deponent  had  long  interviews  wdth 
Doctors  Lyon,  Macdonald  and  Flint,  it  being  expected 
that  any  time  John  Armstrong  Chanler  might  take  pro- 
ceedings for  his  release"  (all  this  began  in  December, 
1897— fol.  273)  "subsequently  (fol.  274)  in  the  month 
of  August,  1898,  deponent  had  a  long  conference  with 
Mr.  Lewis  S.  Chanler,  one  of  the  Petitioners,  and  had 
some  correspondence  with  Doctors  Macdonald  and  Flint 
in  reference  to  the  conditioti  of  Mr.  Chanler  and  ar- 
ranged with  these  doctors  to  he  prepared  to  testify  at 
any  moment.  That  subsequently,  in  the  month  of  April, 
of  this  vear,  1899,  the  familv  commenced  their  Proceed- 
ings  for  the  appointment  of  a  Committee  for  Mr.  Chan- 
ler, and  before  these  proceedings  were  started  deponent 
had  a  cable  correspondence  with  both  the  Petitioners 
herein,  and  also  with  Stanford  White,  who  represented 
the  alleged  incompetent  person,  and  thereupon,  Lewis 
S.  Chanler,  one  of  the  Petitioners,  came  over  from  Eu- 
rope to  attend  to  the  matter,  and  slibsequently  Win- 
throp Chanler  also  came  over  from  Europe  for  the  same 
purpose."  (fol.  274)  "And  also  deponent  had  a  num- 
ber of  conferences  with  Winthrop  Chanler  (fol.  275), 
one  of  the  petitioners,  and  with  Mr.  Henry  Lewis  Mor- 


103 


ris"  (the  la\\^er  for  the  Clianler  family  generally — 
see  fol.  276).  "Deponent  further  says  that  the  expert 
physicians  examined  before  the  said  Commission(^rs 
(Messrs.  Ogden,  Fitch  and  Sherman,  fol.  275)  and  Jury 
herein,  were  Dr.  Samuel  B.  Lyon,  Dr.  Carlos  F.  Mac- 
donald,  and  Dr.  Austin  Flint,  and  they  have  certain 
claims  against  the  estate  of  said  John  Armstrong  Chan- 
ler  for  their  compensation  herein,  and  in  the  opinion 
of  deponent  the  order  to  be  made  herein  should  con- 
tain a  provision  in  substance  leaving  the  payment  of 
these  claims  to  the  discretion  of  the  Committee  to  be 
appointed  in  this  Proceeding.  Egerton  L.  Winthrop, 
Jr."  (fols.  276-277). 

It  is  plainly  visible  from  a  careful  examination  of  the 
above  that  the  Chanler  family  were  thoroughly  con- 
cerned lest  John  Armstrong  Chaloner  should,  by  hook 
or  crook,  have  his  day  in  Court.  They  began  their  ma- 
chinations in  1897,  in  the  month  of  December — -when 
Egerton  L.  Winthrop,  Jr.,  was  employed  to  nuirshal 
the  alienists  and  have  them  and  the  Petitioners  rer/rfy  to 
hring  the  Proceedings  before  the  Commission  and 
Sheriff's  Jury  lohen  Chaloner  should  her/in  physically  to 
succuml)  to  the  frif/htful  strain  of  his  environment — a 
Madhouse.  They  dared  not  do  it  before  Chaloner's  nerv- 
ous system  had  begun  to  sustain  injury,  for  they  very 
w^ell  knew  that  he  could  state  his  case  as  easily  on  the 
witness  stand  as  he  did  in  the  letter  of  some  five  thou- 
sand words,  to  Commonwealth's  Attorney  Micajah 
Woods  (Plaintife-s  Exhibit  0  for  Identification,  pp. 
154-173,  fols.  303-330)  written  in  July,*  1897— within 
four  months  of  his  incarceration.  Therefore,  although 
said  Egerton  L.  Winthrop,  Jr.,  was  employed  as  early 
as  December,   1897,  he  did  not   strike— did   not  bring 


*"July  30"  is  a  stenographer's  error  for  "July  3."     See  affidavit  of 
Captain  Micajah  Woods  in  re  receipt  of  same,  p.  154.  fol.  303. 


104 


th6  iProeeeding's — until  the  IS pring  of  1899 — Why  not? 
Because  Chaloner  was  in  perfect  physical  and  mental 
condition  during  all  that  entire  time:  There  is  no  men- 
tion by  any  one  of  the  three  said  alienists  when  on  the 
stand  of  Chaloner- s  having  to  he  treated  for  anything 
during  the  more  than  two  years  he  had  been  in  "'Bloom- 
mr/rfrt7e^'  when  said  Proceedings  of  1899  were  brought. 
Not  one  of  them  testified  that  Chaloner  had  taken  so 
much  as  an  ounce  of  medicine  during,  that  entire  time. 
But  although  Chaloner's  physical  health  was  superb, 
still  his  strength  first  began  to  be  atfected  in  the  Fall  of 
1897  about  the  time  that  said  Egerton  L.  Winthrop,  Jr., 
was  called  in.  Chaloner  had  all  summer  been  taking 
rather  long  walks,  with  a  keeper  about  the  grounds. 
He  gradually  shortened  them  through  increasing  physi- 
cal weakness — the  first  sign  of  the  nervous  attack  which 
culminated  in  the  physical  attack  on  his  spine  described 
bv  him  in  the  1899  Proceedings.  Therefore,  so  soon 
as  the  Chanler  family  knew  that  he  had  begun  to  suc- 
cumb to  the  physical  pressure  of  his  environment,  they 
took  steps  to  be  ready  to  have  Proceedings  brought  20 
miles  off  in  New  York  City,  so  soon  as  his  nervous  af- 
fection— brought  on  by  his  environment — should  break 
out  a7id  confine  him  to  his  bed.  Chaloner  was  still  hold- 
ing his  own,  when  said  Winthrop  sent  his  alienists, 
said  Flint  and  Macdonald,  up  to  Chaloner's  cell  to  spy 
out  the  land  (p.  141,  fol.  27,  and  also  p.  120,  fol.  234). 
Dr.  Carlos  F.  Macdonald,  on  the  stand :  "I  first  visited 
John  Armstrong  Chanler  at  the  Bloomingdale  Asylum 
for  the  insane,  on  March  16th,  1898,  in  company  with 
Dr.  Austin  Flint  of  this  citv.  Doctor  Flint  and  mvself 
*  *  *  again  visited  Mr.  Chanler  on  April  9th,  1898. 
He  cordially  invited  us  to  walk  into  his  room  at  once," 
(p.  122,  fol.  238).  "There  was  no  sign  of  the  want  of 
muscular  power  to  direct  his  movements,  and  no  sug- 


105 


gestion  of  paralysis  about  him.  He  stated  that  he  slept 
well,  and  that  his  bowels  were  regular,  and  that  he  was 
in  perfect  mental  and  physical  health,"  p.  123,  fol.  240. 

There  is,  therefore,  no  possible  sign  of  the  hypochon- 
driac in  Chaloner,  thirteen  months  after  his  incarcera- 
tion. One  year  later,  hoivever,  the  trouble  which  had 
shown  itself  in  loss,  yradual  loss  of  strength  for  outdoor 
exercise,  came  to  a  head  and  (p.  Ill,  fol.  225,  Dr.  Lyon 
on  the  stand,  in  the  1S99  Proceedihgs )  :  ''I  asked  him  if 
he  wanted  to  be  present  here;  he  said  he  was  physi- 
cally unable  to  be  present  on  account  of  pain  in  his 
spine — he  also  said  his  knee  was  affected  in  the  same  way 
and  he  would  be  unable  to  come,"  p.  115,  fols.  225-226. 

'*Q.  (folio  675)  :  Did  that  infirmity  really  exist,  or 
was  it  a  delusion? 

A.  I  think  he  has  a  pain  in  his  siiine,  but  I  do  not 
think  it  would  incapacitate  him  from  coming  here.  I 
think  he  felt  some  pain — he  was  sincere  in  that,  but  it 
was  not  an  incapacity  that  would  prevent  an  ordinary 
person  from  going  out ;  he  did  not  feel  as  if  he  could 
stand  up;  he  has  kept  his  bed  for  over  three  loeeks,  at 
least/' 

How  much  did  Dr.  Lyon's  handsome  fee  have  t»  do 
Avith  this  statement — a  fee  so  substantial  (p.  112,  fol. 
276)  presumably,  that  though  said  Egerton  L.  Win- 
throp,  Jr.,  did  not  hesitate  to  ask  a  thousand  dollars 
of  Chaloner's  money  for  having  Chaloner  declared  in- 
sane for  life,  vet  did  hesitate  to  name  said  Dr.  Samuel 
B.  Lyon's  fee,  and  suggested  that  it  be  left  to  the  Com- 
mittee to  be  appointed  by  the  Sheriff's  Jury  Proceed- 
ings in  1899;  (p.  142,  fols.  276-277)  said  "Committee" 
being  no  less  a  personage  than  a  brother-in-lau^  of  Stan- 
ford White,  the  man  who  had  lured  Chaloner  from  Vir- 
ginia to  New  York ;  and  said  "Committee"  being  also  a 
partner  of  Joseph  Hodges  Choate,  Sr.,  who  was,  at  said 


106 


time — and  is  to  this  day — senior  partner  of  the  firm  of 
Evarts,  Choate  and  Beaman,*  of  which  law  firm  said 
"Committee/'  said  Prescott  Hall  Butler  was  a  member, 
as  is  Thomas  T.  Sherman,  today.  Moreover,  said  Joseph 
Hodges  Choate,  Sr.,  was  at  said  time — and  for  all  Chal- 
oner  knows  to  the  contrary  is  today— is  now — one  of 
the  Board  of  Governors  of  said  Society  of  the  New  York 
Hospital,  said  "Bloomingxlale,"  falsely  so-called,  which 
Institution  is  not  a  State,  or  public.  Institution,  or  an 
eleemosynary  Institution,  but  is  a  purely  money-mak- 
ing Institution,  ivhich  did  not  hesitate  to  make  some 
twenty  thousand  dollars  out  of  Chaloner,  by  charging 
him  one  hundred  dollars  per  week — not  counting  ex- 
tras— as  appears  from  the  back  of  the  cover  of  the  Com- 
mitment Papers  of  1897,  for  a  two-room  cell  for  three 
years  and  eight  months,  and  over.  [We  are  unable  to 
find  reference  to  the  back  of  said  Couimitment  Papers-^ 
in  the  Transcript  of  Record. ) 

//  Chaloner  were  a  hypochondriac  he  would  have 
kept  his  bed,  and  been  there  yet,  instead  of  practicing 
walking  such  great  distances  of  an  afternoon  that  he 
was  able  to  walk  away  Thanksgiving  Eve,  1900,  and 
make,  thereby,  his  escape. 

Dr.  Samuel  B.  Lyon  was  Chaloner's  jailor  at  the  time, 
at  the  time  of  the  1899  Proceedings.  Dr.  Samuel  B. 
Lyon  stood  in  the  same  relation  to  Chaloner  that  the 
Sheriff  did  to  Mrs.  Simon,  in  Pinion  v.  Craft,  supra. 
But  no  hint  or  whisper  even,  ever  was  made  that  the 
Sheriff  received  a  fee  for  holding  Mi's.  Siuion,  or  havhig 
her  declared  insane.  Whereas  said  Egerton  L.  Win- 
throp,  Jr.'s  affidavit,  supra  (p.  140,  fol.  273)  shows 
that  said  Dr.  Samuel  B.  Lyon  was  one  of  the  experts 


*Now  Evarts,  Choate  and  Sherman. 

tSince  found  p.  114,  fol.  224.     "Legal  Status.     (State  whether  in- 
digent, public  or  private).     Private.     Price  per  week,  $100.00." 


107 


in  the  employ  of  the  ChunJer  fantily  to  declare  Chaloner 
insane  and  incompetent  for  life,  and  moreover,  a  patient 
at  one  hundred,  dollars  per  week  in  the  Hospital  of 
which  said  Dr.  Lyon  was  the  Medical  Superintendent. 
(Dr.  Lyon  on  the  stand,  p.  117,  fol.  221))  :  "Q.  Is  the 
disease  progressive?  A.  The  disease  is  a  permanent 
disease  and  progressive  in  the  stages  I  have  mentioned." 
(p.  117,  fol.  230).  ''Q.  What  disease  is  he  suffering 
from?  A.  Paranoia;  by  some  it  is  called  systematized 
delusional  insanity." 

(P)  Mayer,  J.,  continues:  "If  the  ttial  judge  had 
received  in  evidence  the  excluded  letter  written  in  July, 
1897,  by  Chaloner  to  Woods,  a  Virginia  attorney,  it 
would  have  appeared  that  he  then  wrote :  "It  is  unnec- 
essarv  for  me  to  sav  that  nothing  but  the  most  unex- 
pected  and  dire  necessity  could  induce  me  to  go  before 
a  'Sheriff's  Jury'  the  usual  manner  in  the  State  of  New 
York  of  carrying  out  a  Habeas  Corpus  Proceedings  for 
a  man  who  has  been  declared  insane  by  a  Judge — be- 
cause it  is  not  the  right  way  to  go  about  it.  I  am  not 
a  citizen  of  the  State  of  New  York,  and  therefore  the 
Sheriff's  Jury  does  hot  apply  to  my  case." 

Chaloner  admits  frankly  that  it  could  come  about  so 
unfortunately  for  him — as  a  lawyer  knowing  his  con- 
stitutional rights — that  he  might  he  forced  "to  go  before 
a  Sheriff's  Jury."  He  emphatically  does  not  say 
"NOTHING  COULD  EVER  INDU(^E  ME  TO  DO 
SO."  HE  ADMITS  FRANKLY  THAT  HE  COULD 
BE  INDUCED  TO  DO  SO  UNDER  THE  FOLLOW- 
ING CIRCUMSTANCES,  NAMELY,  UNDER  STRESS 
OF  "THE  MOST  UNEXPECTED  AND  DIRE  NECES- 
SITY." 

Now,  when  one  considers  that  said  Mica j ah  W^oods 
admits  in  his  affidavit  (p.  154,  fol.  303)  that  (he)  "I 
received  the  appended   letter  addressed  to  me,   under 


108 


date  July  3,  1897,  in  October,  1897,  that  the  said  let- 
ter is  in  the  handwriting  of  John  Armstrong  Chanler 
and  signed  by  John  Armstrong  Chanler'' — when  one 
considers  that  said  Woods  received  said  letter  praying 
him  to  bring  habeas  corpus  Proceedings  in  a  Federal 
Court,  in  company  with  the  late  United  States  Sena- 
tor from  Virginia,  John  A^'arwick  Daniel,  in  October, 
1897 ;  and,  in  the  Spring  of  1899  said  Micajah  Woods 
had  not  yet  made  the  first  move  to  bring  said  Proceed- 
ings, we  respectfully  submit  that  the  contingency  which 
would  open  the  doors  of  a  New  York  State  Court  to 
Chaloner — as  outlined  by  him  in  said  letter  to  said 
Woods — had  arisen,  namely,  "^the  most  unexpected  and 
dire  necessity''  aforesaid.  Therefore  the  implication  by 
the  learned  Judge  Mayer  that  Chaloner  "absented  him- 
self from  the  1899  Proceedings  by  his  own  choice,"  we 
respectfully  submit,  is  not  borne  out  by  the  extract 
from  said  letter,  of  July  3rd,  1897,  from  Chaloner  to 
Commonwealth's  Attorney  Micajah  Woods  of  Albemarle 
County,  Virginia. 

^Moreover.  The  learned  Judge  Mayer  appears  to  lose 
siglit  entirely — we  respectfully  submit — of  the  salient 
fact  that  in  said  letter  to  said  Cai)tain  ^licajali  AVoods, 
Chaloner  was  oiitlining  the  commencement  of  a  Proceed- 
ings to  be  secretly  brought  by  said  W^oods.  Upon  the 
other  hand  said  learned  Judge  Mayer  appears  to  lose 
siglit  entirely — we  respectfully  submit — of  the  fact  that 
in  1899 — tiro  years  after  said  letter  of  July  3,  1897,  to 
said  AVoods — the  conditions  had  utterly  changed;  and  in- 
stead of  their  being  Proceedings  brought  by  said  Captain 
Micajah  AA'oods  and  the  Senator  John  AA^arwick  Daniel 
— they  were  now — in  1899 — Proceedinys  hrouyht  by  the 
hostile  Chanler  family.  Therefore  said  learned  Judge 
Mayer  appears  to  lose  sight  entirely  of  the  fact  that — as 
in  a  game  of  chess — the  situation  is  entirely  clianged, 


109 


and  that  all  Clialoner  itoiv  has  to  do — in  order  to  be  true 
to  his  phm  of  campaign  in  a  Federal  Court  as  afore- 
said— is  to — by  his  said  attorneys— /itfi;e  the  action  re- 
mo  red  from  a  State  to  a  Federal  Court  on  the  ground 
of  diverse  citizenship.  See  Chaiiler  against  Slier niari, 
162  Fed.  Kep.,  19,  supra. 

(Q)  flayer,  J.,  continues:  "And  it  further  appears 
from  Chaloner's  Deposition  excluded  by  the  trial  Judge 
that  he  absented  himself  from  the  1809  Proceedings  by 
his  own  choice.  If,  therefore,  he  knew  at  that  time  what 
he  was  doing,  he  deliberately  failed  to  appear  when  full 
opportunity  Avas  afforded  to  him  so  to  do."  p.  188,  fol. 
367. 

If  the  trial  Judge  had  received  in  evidence  the  ex- 
cluded Depositions  made  in  1908,  and  1911-1912  by  Clial- 
oner, it  would  have  appeared  that  he  showed  that  it  was 
impossible  for  him  to  get  the  confidence  of  any  lawyer, 
from  the  fact  that  he  was  in  an  Insane  Asylum.  He 
had  attempted  to  employ  the  late  Senator  David  B.  Hill, 
but  to  no  avail.  He  had  later  attempted  to  employ 
Commonwealth's  Attorney  Micajah  Woods,  and  Senator 
John  Warwick  Daniel,  but  to  no  avail.  Therefore  Chal- 
oner  knew  that  to  get  a  lawyer  he  must  see  him  face 
to  face.  Therefore  when  Dr.  Lyon  says  (p.  119,  fol.  232) 
in  reply  to  the  question  "The  only  reason  for  not  pro- 
ducing him  is  his  own  wish.  A.  That  was  his  decided 
wish,  I  gave  him  the  opportunity,  and  to  employ  counsel 
or  anything  he  wanted  to  do,"  there  was  no  possible 
hope  held  out  to  Clialoner  in  that  offer.  A  f/laiice  at  p. 
160,  fol.  314,  iriJI  sJioir  from  the  foUoiriuf/  paragraph 
in  said  letter  of  Juli/  3,  1897,  wJiat  Dr.  Li/on's  alleged 
offer  "Yo  emplojj  eoiiiise]'"  amounted  to.  It  requires  no 
argument  to  support  the  statement  that  a  client  should 
he  allowed  to  approach  his  comisel  at  first  hand,  that  is 
to  sa^^  before  anghodg  else  has  got  his  rar  and  poisoned' 


110 


it  against  him.  "This  is  the,  first  .opportunity  which  I 
have  had  of  posting  a  letter  unbeknown  to  the  authorities 
here.  The  rule  is,  that  all  letters  and  telegrams  must 
be  sent  through  the  authorities  here ;  who  have  the  legal 
right  to  suppress  or  forward  to  the  Commission  in 
Lunacy  at  Albany,  w^ho  have  again  the  legal  right  to 
suppress  or  destroy  them.  You  can  readily  understand 
that  I  would  not  send  a  letter  under  such  conditions. 
Hence  my  having  to  wait  four  months  to  write  you  and 
ask  vour  aid." 

An  examination  of  the  brief  of  Joseph  H.  Choate,  Jr., 
counsel  for  the  defendant,  Sherman,  before  the  Circuit 
Court  of  Appeals,  throws  a  light  upon  the  above  men- 
tioned language  of  the  learned  Judge  Mayer  (p.  188, 
fol.  367)  that  "It  further  appears  from  Chaloner's  dep- 
osition— that  he  absented  himself  from  the  1899  Pro- 
ceedings by  his  own  choice.'-  The  learned  Judge  evi- 
dently did  not  have  time  to  read  the  section,  alluded  to, 
of  Chaloner's  Deposition  and  relied  upon  the  statement 
thereanent  to  be  found  in  said  brief  of  said  Josejih  H. 
Choate,  Jr.,  to-wit :  "From  the  plaintiff's  own  testimony 
in  his  colossal  Deposition,  it  abundantly  appears  that 
he  absented  himself  from  the  1899  hearing  by  his  own 
choice." 

We  regret  to  observe  that  said  statement  by  said 
Choate  is  entirely  unsupported  by  fact.  We  shall  pres- 
ently produce  the  said  selected  portion  of  Chaloner's 
Deposition  to  sustain  said  Choate's  contention — selected 
by  said  Choate  in  his  brief^ — before  doing  so  we  must 
draw  this  learned  Court's  attention  to  another  wholly 
unwarranted  assertion  by  said  Choate,  relating  to  Chal- 
oner's position.  To  wit,  said  Choate  says  ( page  14,  of 
his  brief  on  appeal  in  Chaloner  against  Sherman): 
"The  plain  fact  is,  of  course,  that  one  who  is  physically 
unable  to  attend  a  trial  is  by  no  means  denied  an  op- 


Ill 


portunity  to  be  heard  if  he  is  able  to  retain  and  consult 
freely  with  counsel. "  Said  Choate  here  states  a  truism, 
practically,  but  utterly  unthout  foundation  in  fact  as 
regards  Chaloner's  situation.  He  goes  on,  "The  fact 
that  plaintiff-in-error  in  this  case  was  entirely  at  liberty 
to  retain  and  consult  with  counsel,  appears  not  only 
from  the  fact  that  he  wrote  long  and  full  letters  (sic) 
to  at  least  one  of  his  counsel"  (fol.  335-6,  Letter  printed 
as  Exhibit  6  for  Identification,  fol.  914). 

Said  Choate  starts  out  by  saying  that  Chaloner 
"wrote  long  and  full  letters  (sic)  to  at  least  one  of  his 
counsel"  and  proceeds  to  support  the  assertion  concern- 
ing "long  and  full  letters''  BY  ONE  SOLITARY  LET- 
TER. This  type  of  inaccurate  statement  in  said 
Choate's  brief — which  we  shall  show  more  than  one 
specimen  of  as  we  proceed — is  undoubtedly  the  cause  of 
the  learned  Judge  Mayer's  aforesaid  statement — he  re- 
lied upon  the  accuracy  of  said  Choate's  claims.  How, 
moreover,  said  Choate  could  honestly  and  truthfully 
found  such  a  statement  as  that  Chaloner  "was  entirely 
at  liberty  to  retain  and  consult  with  counsel"  upon  one 
sporadic  letter  which,  from  its  addressee's  own  admis- 
sion, REQUIRED  SOME  FOUR  MONTHS— see  supra 
— p.  154,  fol.  303 :  "I,  Micajah  Woods,  Commonwealth's 
Attorney  for  Albemarle  County,  Virginia  *  *  *  re- 
ceived the  appended  letter  addressed  to  me,  under  date 
July  3, 1897,  in  October,  1897"— for  Chaloner  to  SNEAK 
THE  LETTER  OUT— so  to  speak— "UNBEKNOWN 
TO  THE  AUTHORITIES  HERE,"  surpasses  our  com- 
prehension. 

Referring  now  to  the  testimony  of  said  Micajah  Woods 
concerning  his  receipt  of  said  letter  (p.  60,  fol.  113)  "I 
received  a  letter  from  the  plaintitf  (Chaloner)  in  about 
October,  1897.  The  letter  was  brought  to  me  by  a  Xew 
York  lawyer  by  the  name  of  Philip,  Mr.  Philip."     This 


112 


proves  beyond  cavil  the  inaccuracy  of  said  Clioate's  said 
statement,  supra,  that  Chaloner  "was  entirely  at  liberty 
to  retain  and  consult  with  counsel ;''  when  he,  Chaloner, 
was  so  far  debarred  from  the  use  of  the  mails  that  in- 
stead of  posting  a  letter  in  the  ordinary  manner,  or  even 
registering  the  same  for  extra  security,  he  was  in  such 
a  plight  that  for  safety  he  had  to  intrust  said  letter  to 
a  New  York  lawyer.  It  further  appears — as  will  be  fully 
gone  into  infra — from  Chaloner's  Deposition  excluded  by 
the  trial  Judge,  that  said  Philip — said  "New  York  law- 
yer"—played  false  with  Chaloner,  and  that  upon  hand- 
ing said  letter  to  said  Woods,  had  said,  in  effect :  "Do 
nothing  in  this  matter  without  consulting  me."  This 
had  so  alarmed  said  Woods  that  he  let  the  matter  drop 
then  and  there. 

Said  Choate  continues,  p.  14,  ibid:  "But  also  from  the 
testimony  in  the  1899  Proceedings  (fol.  695)  which  shows 
that  at  the  time  in  (luestion  he  was  on  parole  and  at 
lilierty  to  go  where  he  pleased  within  large  limits  (fol. 
692).'"  This  statement  of  said  Choate  is  highly  decep- 
tive. For  though  Chaloner  was  undoubtedly  just  then 
placed  on  parole,  yet,  by  the  mouth  of  Dr.  Samuel  B. 
Lyon  said  (lioate's  own  alienist,  together  with  Drs.  Flint 
and  Macdonald,  it  is  proved  that  Chaloner  urns  bed-rid- 
den and  unable  to  make  use  of  said  parole:  (p.  114,  fol. 
225).  Said  Dr.  Lvon  on  the  stand  in  said  1899  Pro- 
ceedings : 

"Q.  When  did  you  last  see  John  Armstrong  Chanler? 

A.  Last  Wednesday  or  Thursday,  about  three  days 
ago. 

Q.  Did  you  see  him  in  regard  to  attending  before  this 
Commission  and  Jury  today? 

A.  Yes,  sir.  I  knew  this  case  was  approaching  and  I 
visited  him  and  asked  him  what  he  wanted  to  do  in  re- 
gard to  it;  whatever  he  wanted  to  do  I  wanted  to  carry 


113 


out.  I  asked  him  if  he  wanted  to  be  present  here;  he 
said  he  was  physically  unable  to  be  present  on  account  of 
pain  in  his  spine — (and  p.  115,  fol.  225).  A  little  sub- 
sequently to  that  I  received  a  request  from  him  to  come 
over  again. 

Q.  In  what  place? 

A.  To  his  room.  He  did  not  wish  me  to  represent  him, 
but  I  should  come  in  his  place,  or  s?lj  that  he  could  not 
come  on  account  of  his  infirmity,  (-and  fol.  226) — he  has 
kept  his  bed  for  over  three  weeks  at  least." 

And  again  from  Dr.  Lyon  (p.  118,  fol.  231)  :  "I  gave 
him  the  parole  of  our  grounds— HE  AVENT  OUT  BY 
HIMSELF  AN  HOUII  OR  SO— AND  THEN  HE 
CEASED  TO  GO  OUT  BECAUSE  HE  WAS  PHYSI- 
CALLY UNABLE." 

How  a  man  can  truthfully  say  that  such  citations  as 
the  above  '^show  that  at  the  time  in  question  he  was  on 
parole  and  at  liberty  to  go  where  he  pleased  within  large 
limits"  passes  our  comprehension. 

When  it  is  further  borne  in  mind  that  Dr.  Lyon  said 
at  the  same  Proceedings  of  1899 — on  the  very  same  day — 
(p.  114,  fol.  225,  supra.)  Q.  "When  did  you  last  see 
John  Armstrong  Chaloner?  A.  Last  Wednesday  or 
Thursday,  ABOUT  THREE  DAYS  AGO"  and  again  (p. 
115,  fol.  226)  on  the  same  occasion  "He  has  kept  his  bed 
for  over  three  weeks  at  least"  there  can  he  no  further 
douht  hut  that  said  Choate  was  deUhcrateljj  aiming  to 
deceive  the  Court;  hij  trusting  that  the  Court  u-ouJd  he- 
lieve  that  he  urns  stating  the  truth  and  not  look  up  each 
and  everg  reference  made  hy  him,  most  naluraUij.  How, 
we  respectfully  submit,  can  a  man  "be  at  liberty  to  go 
where  he  pleased  within  large  limits"  when  he  is  confined 
— and  has  been  for  three  weeks — ^except  for  "an  HOUR 
OR  SO  AND  THEN  HE  CEASED  TO  GO  OUT  BE- 
CAUSE HE  WAS  PHYSICALLY  UNABLE?"     How 

(8)  '  ,         ' 


114 


can  a  man  ''he  at  liberty  to  go  where  he  pleased  wiihm 
'large  limits'"  when  he  is— and  has  been  for  ''over  tliree 
weeJiS  at  least-'— conpned  to  the  narrow  limits  of  his 
hedf  ■  .         ■ 

Said  Choate  eoutinues :  (p.  14  of  his  said  brief)  "There 
is  uo  sui>gestion  in  the  case  at  Bar  that  the  pUiintiff 
even  suggested  a  wish  to  be  present  or  to  have  the  trial 
at  a  later  day.  On  the  contrary,  it  appears  from  the  testi- 
mony in  the  1899  Record  that  he  deliberately  and  of  his 
own  preference,  refused  to  attend  (fols.  674,  695)." 
Turning  now  to  said  Choate's  supports  for  the  altove 
statement  (fol.  674)  (p.  114,  fol.  225)  Dr.  Lyon  on  the 
stand:  "7  asked  him  if  he  wanted  to  he  present  here; 
he  said  he  was  physicallij  iinahle  to  he  present  on  ac- 
count of  pain  in  his  spine — and  he  also  said  his  inter  was 
affected  in  the  same  wag,  and  he  wonld  he  iiitahlr  to 
come.'"  Said  Choate  stops  short  in  his  citation,  for 
in  the  very  next  sentence  Chaloner  gives  a  respectful  i)i- 
struction  to  Dr.  Lyon  to  carri;  a  specific  message  from 
him  to  tlic  Commission  and  Jnrg,  e.rplainiiig  Jiis  physical 
condition  precisely,  and  leaving  it  to  them  as  honourable 
and  liumane  men  to  do  their  legal  and  official  duty, 
namely,  postpone  the  hearing  until  his  indisposition 
should  pass,  or  send  a  Committee  appointed  by  them  to 
visit  him  and  pass  on  his  case.  Tt  was  not. for  liim,  a 
prisoner,  to  instruct  the  Court — the  Commission  and 
Sheriff's  Jury— he  simply  and  respectfully  stated  the 
truth,  and  left  it  to  their  sense  of  honor  and  pi'(>i'riety 
and  judicial  sense  of  duty  to  take  the  only  steps  possilde 
to  cure  the  evil  of  the  situation.  To-wit :  either  postpone 
the  Proceedings  to  a  later  day — the  Kecord  shows  Chal- 
oner walking  about  once  more  and  fully  ahle  to  aticnd 
Court  inside  of  ninety  days  from  said  time — or  appoint 
a  Committee  from  the  members  of  the  Commission  and 
Jurv  to  visit  Chaloner  and  view  him  face  to  face.     If 


115 


the  distance  was  not  too  great  for  Clialoner  to  go  to 
the  Commission  and  Jury,  we  respectfully  submit  it  was 
not  too  great  for  the  said  Committee  to  visit  Clialoner, 
since  he — a  prisoner  without  counsel — was  not  in  a  posi- 
tion to  do  anything  else. 

Chaloner  Went  so  far  as  to  send  for  Dr.  Lvon  a  little 
later,  and  remforcc  the  statement  that  "he  was  physi- 
cally unable  to  be  present  on  account  of  pain  in  his 
spine" — which  in  itself  carried  cr  respectful  suggestion 
to  a  Commission  and  Jury  alive  to  their  duty  to  post- 
pone the  case^-not  satisfied  with  this  implied  request, 
Chaloner  sent  for  Dr.  Lyon.  Said  Dr.  Lyon  says  supra 
(p.  115,  fols.  225  and  675)  :  "A  little  subsequently  to 
that  I  received  a  request  from  him  to  come  over  again." 
Q.  "In  what  place?"  A.  "To  his  room.  He  did  not 
wish  me  to  represent  him,  but  I  should  come  in  his  place 
or  say  that  he  could  not  come  on  account  of  his  infirm- 
ity." Said  Choate  further  cites  above,  folio  695  (p. 
118,  fol.  232)  :  Said  Dr.  Lyon  on  the  stand.  Q.  "The 
only  reason  for  not  producing  him  is  his  own  wish?  A. 
That  was  his  decided  wish."  Naturally,  a  man  with  an 
afflicted  spine  and  knee,  which  had,  and  still  did,  pin 
him  to  his  bed  for  three  weeks,  and  still  would  for  some 
three  months  more,  does  not  wish  to  undertake  a  20- 
mile  railway  journey.  But,  we  respectfully  submit, 
there  is  much  more  in  this  apparently  artless  question 
upon  the  part  of  the  artful  Candler — of  Jay  and  Candler 
—who,  with  said  Egerton  L.  Winthrop,  Jr.,  of  the  same 
firm,  were  the  lawyers  employed  by  the  Chanler  family 
to  bring  said  1899  Proceedings.  Said  Candler  evidently 
desires  to  instill  into  the  minds  of  the  Jury  that  nothing 
hut  willfulness  prevented  Chalonefs  presence  before  the 
Commission  and  Jury.  Note  the  craft  in  said  Candler's 
question  aforesaid,  to  wit:  "The  only  reason  for  not 
producing  him  is  his  own  wish?"     The  ''only  reason." 


116 


Dr.  Lyon  iunocently  falls  into  the  trap  thus  set  by  the 
crafty  Candler  and  at  once  and  honestly  replies :  "That 
was  his  decided  wish." 

There  is  no  hint  here  upon  said  Candler's  part  of  an 
ill  man,  suffering  with  spinal  trouble  and  an  ailment 
in  the  knee.  Which  two  ailments  were  the  reason  for 
Chaloner's  absence  from  said  Proceedings  and  NOT  the 
WISH,  not  to  be  tortured  unnecessarily  by  being  forced 
to  journey  40  miles — 20  miles  each  way — to  Court  on 
Manhattan  Island — in  his  present  bedridden  condition. 
The  ailments  aforesaid  are  the  cause  of  Chaloner's  non- 
appearance—not  the  ew  post  facto  "WISH"  aforesaid 
arising  directly  from  and  out  of  said  ailments. 

Bearing  the  above  in  mind,  how  far  indeed  from  the 
facts  appears  the  following  statement  of  said  Choate, 
page  14,  ibid.:  "The  utmost  extent  to  Avhich  the  offer  of 
proof  went  was  to  proffer  evidence  to  show  that  the 
conditions  imposed  upon  the  plaintiff-in-error  by  his 
confinement  and  illness  mav  have  made  the  conduct  of 
his  defence  inconvenient."  "Impossible"  is  the  only 
word  a  careful  man  would  dream  of  employing  in  the 
premises — "inconvenient"  in  the  premises  is  an  absurd- 

ity. 

In  conclusion,  touching  this  particular,  Mr.  Choate's 
erroneous  statements  are  cumulative.  The  following 
is  the  climax  for  which  there  is  actually  no  justification. 
He  says,  page  15  of  his  said  brief :  "From  the  plaintiff- 
in-error's  own  testimony,  in  his  colossal  Deposition,  it 
abundantly  appears  that  he  absented  himself  from  the 
1899  Hearing  by  his  own  choice,  being  free  to  attend  and 
to  consult  counsel.  (Plaintiff's  deposition.  Vol.  V,  pp. 
122-142).'"  "The  passages  referred  to  seem  to  us  to 
demonstrate  the  fact  so  completely  that  no  amount  of 
evidence  to  the  contrary  could  convince  the  Court  that 
the  plaintiff -in-error's  failure  to  appear  at  the  1899  Hear- 


117 


ing  was  because  opportunity  to  be  heard  was  denied  him. 
It  is  to  be  remembered  that  the  plaintiff  is  himself  a 
lawyer,  to  whom,  if  sane,  the  importance  of  the  1899 
Proceedings  was  doubtless  evident."  We  now  insert 
said  passage  upon  which  said  Choate  bases  the  above 
statement. 

DEPOSITION,  VOL.  V,  pp.  121-142. 

Q.  You  think  the  disease  will  terminate  soon 
in  death? 

A.  No,  sir ;  there  is  no  likelihood  of  that. 

By  a  Juror :  Has  he  ever  made  any  attempt  to 
escape? 

A.  No.  He  has  no  desire  to  escape — he  has 
made  no  attempt  to  escape.  I  granted  him  the 
privilege  of  all  the  grounds — I  gave  him  the 
parole  of  our  grounds  on  his  honor — he  is  a  very 
honorable  man ;  he  went  out  by  himself  an  hour 
or  so — then  he  ceased  to  go  out  because  he  was 
physically  unable  to  on  account  of  his  unlikeli- 
hood.    Q.  "What  have  you  to  say  to  this?" 

A.  I  reply  to  that,  in  the  first  place,  this  showed 
my  healthy  condition.  Dr.  Lyon  says  without 
equivocation  or  hesitation,  when  asked  if  I  am 
likely  to  die  soon :  ''No,  sir ;  there  is  no  likelihood 
of  that."  That  was  after  I  had  been  two  years 
in  "Blooming-dale"  under  the  most  frightful  con- 
ditions as  above  described,  and  during  that  time 
I  had  never  touched  any  medicine  of  any  sort, 
kind  or  description ;  as  I  may  have  stated,  I  never 
took  anything  but  quinine  from  time  to  time  to 
keep  off  malaria,  with  the  exception  of  Stearns 
Wine  of  Cod  Liver  Oil,  which  I  took  for  the  first 
few  weeks  of  my  incarceration  as  a  tonic,  largely 


118 


to  help  me  stand  the  extra  terrible  strain  of  my 
hideous  surroundings,  dropped  it  after,  a  few 
weeks  and  never  recurred  to  it,,  because  I  was 
perfectly  healthy,  with  the  exception  of  quinine, 
which  is  a  tonic  and  not  a  medicine,  and  porous 
plasters  for  my  spine,  which  again  are  not  medi- 
cine, but  plasters — I  never  bought  five  cents 
worth  of  medicine  of  any  description.  Now,  one 
of  the  first  things  in  lunacv  is  the  effect  on  the 
liver.  Bona  fide  lunatics'  livers  are  sluggish  and 
I  would  see  trays  going  up  with  medicine,  with 
cathartics,  for  my  various  lunatic  colleagues. 
That  is  something  I  never  took  when  in  "Bloom- 
ingdale" ;  I  never  took  a  pill,  and  I  never  took 
any  salts  or  anything  of  the  sort ;  my  liver  was  in 
perfect  condition,  and  that  is  one  of  the  proofs 
that  I  was  absolutely  sane.  The  liver  being  one 
of  the  first  things  to  be  attacked  in  case  of  bona 
fide  lunatics;  second,  a  sleeping  draught.  On 
these  trays  containing  medicines  which  went  by 
my  door  to  other  cells  there  would  be  sleeping- 
draughts,  sometimes  a  regular  thing;  it  is  well 
knoAvn  that  lunatics  frequently  do  not  sleep  well, 
and  they  have  to  have  sedatives  to  induce  sleep ; 
I  never  had  anything  whatever  to  make  me  sleep ; 
I  slept  like  a  log  for  nine  to  ten  hours  a  night 
after  I  conquered  my  environment,  dominated  my 
environment  in  the  fear,  the  dread,  the  horror  of 
assassination  bv  lunatics  bv  strangulation;  after 
I  dominated  that  I  slept  like  a  top ;  it  took  me 
about  a  vear  because  the  cause  of  the  danger  was 
there  for  a  year,  before  the  newspapers  I  took  had 
accumulated  in  sufticient  numbers  to  make  col- 
umns high  enough  to  act  as  a  barrier  to  the  open- 
ing of  my  hall  door  of  my  cell,  aforesaid;  (the 
cell  doors  were  alwavs  unlocked). 


119 


My  bills,  paid  while  in  "Bl.ooi}iijii>dale,"  will 
show — iiiy   accounts^^Uiat .  il  .never,  boujiht   any- 
thing.    Of  course,  it  is  possible  they ;  have*  faked 
up  accounts  now  and  have  accounts,  to  put  be- 
fore a  jury  that  I  bought  this  or  that;  the  jury 
can  draw  their  inferences;  ^/(e/y  mn't,  draw  ac- 
comits  of  course.     Now,  as  regards  my  not  want- 
ing to  escape:  Dr.,  Lyon  says  in  answer  to  the 
question : -"Has  he  ever  made  any  attempt  to  es- 
cape?   A.  No,  he  has  no  desire  to  escape — he  has 
made  no  attempt  to  escape,"     Now^  that,  is  a  fact. 
I  had  no  desire  to  escape.    Escape  was  repugnant 
to  me.  I  wanted  to  get  out  by  legal  means ;  I  want- 
ed to  get  out  through  the  means  of  lawyers  bring- 
ing /«»&e,a;s  Gor^M/s  proceedings  to  get  me  out,  as 
my  letter  tO:  Micajah  AiVoods  of  July  3rd,  1897, 
shows.    I  wanted  him  and  the  late  United  States 
Senator  John  W.   Daniel,  of  Virginia,  to  go  to 
New  York  and  get  out  a  habeas  corp^(.s  writ  and 
-get  me  out,  sue  out  a  habeas  corpus  writ  to  get 
me  out.    The  letters  that  I  have  put  in  exhibition 
here,  put  in  evidence,  prove  beyond  cavil  that  I 
had  no  intention  whatever;  that  Dr.  Lyon  is  per- 
fectly frank  when  he  says,  "He  had  no  desire  to 
escape."  -  . 

I  only  escaped  when  the  ill-advised  acquaintance 
of  mine,  Mr.  H.  H.  Frost,  Jr.,  a  lawyer  of  New 
York  City,  took  the  responsibility  of  taking  the 
game  in  his  own  hands  without  consultation  with 
me  and  saying  that  he  would  not  visit  me  with- 
out the  knowledge  of  the  authorities  at  "Bloom- 
ingdale";  that  meant  the  death  and  destruction 
of  my  ho])es  and  eventual  death  to  me — I  would 
certainly  have  died  suffering  a  physical  decline- 
not  a   mental   decline— if   I    had    continued    in 


120 


"Bloom ingdale"  for  a  number  of  years.  I  es- 
caped on  a  night's  notice  on  reading  this  calami- 
tous letter. 

I  don't  blame  Mr.  Frost;  I  simply  don't  agree 
with  his  judgment;  that  is  all  in  this  particular. 
He  meant  well.  I  was  forced  to  escape.  Had  I 
not  it  required  no  talk  to  show  that  Mr.  Frost 
would  have  gone  on,  had  he  been  as  good  as  his 
word,  which  I  have  no  doubt  he  would  have  been, 
communicated  with  the  authorities  and  they 
would  thereby  have  known  that  I  was  communi- 
cating with  the  outer  world  and  stopped  my 
privileges  of  walking  without  a  keeper ;  they  would 
knoAV  that  I  was  communicating  with  the  outer 
world,  because  it  would  be  the  part  of  common 
sense  to  say,  "Why  did  Mr.  Frost  wait  for  two 
years  before  communicating  with  the  authorities 
and  desiring  to  see  Mr.  Chaloner?"  The  next 
natural  line  of  reasoning  would  be  that :  ^'Mr. 
Chaloner  must  be  communicatinf/  by  letter  with 
the  outside  world.  This  is  against  the  rule,  and 
his  privilege  of  ivalking  must  be  icithdraivn/' 
Then  I  would  truly  have  been  in  a  desperate  sit- 
uation. My  record  in  "Bloomingdale"  and  after 
writing  this  book — law  books,  etc. — history,  "Four 
Years  Behind  The  Bars,"  shows  that  I  am  as 
interested,  to  put  it  mildly,  in  reforming  Lunacy 
Laws  as  I  am  in  the  repossession  of  my  own  prop- 
erty ;  that  I  am  willing  to  sacrifice  vears  of  mv 
life,  be  in  poverty — I  was  in  poverty  after  the 
first  years  of  this  escape  from  "Bloomingdale" 
— accept  poverty,  suffer  poverty — and  nol)ody 
knows  what  povertv  is  until  thev  have  suffered 
it — suffer  poverty  in  preference  to  obtaining 
riches  by  practically  the  stroke  of  a  pen,  by  simply 


121 


haviug  my  case  briefed  on  enough  law  to  get  my 
property.  I  would  not  do  that,  however.  The 
record  shows  that;  the  record  shows  that  I  de- 
clined to  accede  to  Senator  John  W.  Daniel's 
stand;  that  he  would  brief  one  or  two  points  of 
lack  of  notice  and  lack  of  opportunity  to  appear 
and  be  heard,  in  my  case,  but  not  go  any  further 
on  the  trial  by  jury-rights  of  alleged  lunatics  be- 
fore indetiuite  incarceratioil  sets  in — and  the  il- 
legality of  the  trials  had  in  absentia.  I  have 
been  fully  sustained,  as  these  law  reviews  show, 
that  have  criticized  the  "Lunacy  Law  of  the 
World,"  and  it  is  unnecessary,  of  course,  to  touch 
on  them  here.  I  w^as  absolutely  determined  to 
live  up  to  my  Hannibal  oath  aforesaid  in  '^Bloom- 
ingdale,"  registered  on  the  margin  of  a  page  of 
Stormonth's  Unabridged  English  Dictionary; 
that  I  would  sacrifice  every  year  of  my  life,  and 
every  dollar  of  my  property  that  was  necessary 
to  cleanse  the  Augean  stable  of  lunacy  legisla- 
tion throughout,  as  it  turned  out,  about  fifty  per 
cent  of  the  States  of  this  great  Union;  as  I  had 
that  duty  which  chance  had  thrust  in  my  grasp 
decidedly  against  my  will — I  had  been  lugged  to 
"Bloomingdale"  and  chucked  behind  the  bars; 
I  had  not  gone  there  willingly  on  the  record — this 
duty  which  had  come  to  me  by  pure  chance,  which, 
if  I  were  to  be  true  to  my  oath  as  a  member  of 
the  Bar  of  New  York  State — not  of  the  City  of 
New  York  or  the  Count v  of  New  York — I  was 
admitted  in  Poughkeepsie  as  a  member  of  the 
State  Bar,  quite  a  different  proposition  from  the 
bar  of  the  Citv  of  New  York,  and  the  Bar  Asso- 
ciation  of  the  City  of  New  York — which  oath 
says,  in  effect,  that  I  will  protect  the  Constitution 


122 


of  the  United  States  and  of  the  State  of  New 
York,  and  I  know  that  both  Constitutions  are 
being  ruptured,  and  are  beiiig  oiltraged  and  raped 
by  these  villainous  lunacy  laws  of  1896,  passed 
by  the  Republican  Legislature  which  feat  in  1896 
— if  I  were  to  be  trtie  to  the  said  oath  and  also 
to  my  duty  as  an  officer  of  the  Court,  because 
lawyers  are  officers  of  the  court,  and  if  I  were  to 
live  up  to  the  legal  niaxiiii  "It  is  a  fraud  to  con- 
ceal a  fraud,"  if  I  were  to  follow  the  road  which 
was  pointed  out  to  me  so  clearly  by  this  oath, 
by  my  being  an  officer  of  the  coiirt,  and  by  the 
said  legal  maxim,  f  was  bound  to  stick  at  nothing 
wJiich  could  prevent  the  airing  of  this  hideous 
crime  against  the  Constitution  of  the  United 
States  and  the  State  of  'Netv  York  and  the  Decla- 
ration of  Independence,  and  the  absolute  rights 
of  the  individual  as  laid  down  bv  Sir  William 
Blackstone  in  his  Commentari(^s— I  must  stick 
at  nothing  which  raised  itself  as  a  barrier  be- 
tween me  and  my  day  in  Court— I  must  stick  at 
overcoming  nothing  which  raised  itself  as  a  bar- 
rier between  me  and  my  "day  in  court";  I  was 
willing,  and  the  record  shows  that  I  was  willing, 
to  risk  my  life  to  that  end;'!  Avill  show  that 
further  on  another  occasion,  another  day,  I  will 
show  that  I  was  offered  my  release  from  "Bloom- 
ingdale,"  but  with  a  string  to  it,  with  a  string  of 
"hush  up,"  with  a  string  of  "Don't  say  a  word," 
with  a  string  of  "Nothing  doing  against  'Bloom- 
ingdale'."     I  politely^ . 

Mr.  Duke:  Mr.  Chaloner,  I  beg  your  pardon. 
Are  vou  reading  from  a  book? 

The  Witness:  No,  sir;  I  am  not. 

Mr.  Duke:  You  know  that  would  not  be  proper. 


123 


The  Witness :  Oh,  no;  not  at  all.  It  is  nothing 
but  the  record  in  the  proceeding-,  not  a  word  else. 

Mr.  Duke:  Oh,  well,  go  ahead;  that  is  all  right. 

The  Witness  :  ( (Jontinning)  :  I  politely  declined 
this  offer,  by  which  I  mean  that  I  did  not  decline 
it,  but  said  nothing  when  it  was  ottered  to  nie 
and  simply  kept  silent  without  allowing  any  ex- 
pression to  enter  my  countenance,  whereui)on  the 
proposer  of  this  proposition  asked  me  again  what 
I  thought  of  the  proposition,  and  I  then  said, 
"This  is  the  first  time  it  has  been  presented  to 
me."  I  then  paused.  The  Ambassador  of  the 
other  side  who  made  this  offer  ( I  flag  the  Docs )  * 
when  1  say  the  Ambassador,.!  don't  mean  that 
he  was  Minister  rienipotentiary  of  the  United 
States — the  Ambassador  of  the  other  side  then 
said,  in  effect:  "Will  you  let  me  know — you  will 
consider  it?"  I  then  said  nothing.  He  then 
said,  "Will  you  let  me  know  irhcti  you  have  con- 
sidered itr  I  said,  "Yes."  My  "politic"  denial 
of  it — denial  of  his  request,  or  rather  my  refusal 
of  his  request,  was  contained  in  the  fact  that  I 
never  notilied  him,  l)ecause  I  never  "considered 
it";  I  never  notified  the  Ambassador,  because  I 
never  considered  it  in  the  shape  of  weighing  the 
proposition  with  a  view  to  whether  I  ought  to  take 
it  or  not.  That  will  be  referred  to  at  another 
time,  but  in  the  interim,  I  trust,  when  I  say  that 
I  was  offered  an  opportunity  to  escape — not  es- 
-cape,  but  leave  ( "Bloomingdale" )  quietly,  l)nt 
with  the  knowledge  of  the  authorities  on  condi- 
tion that  1  hush  the  whole  matter  up  and  brought 
no   charge  against  anvbodv   and    made   no   com- 


*This  phrase  is  elucidated,  Appendix,  pp.   377-378. 


124 


plaints  of  any  nature  whatever.  The  experience 
I  had  in  "Bloomin<»(lale"— the  visit  from  this  gi- 
gantic maniac  I  had  at  night — prowling  in  my 
cell — and  the  murderous  attack  on  me  by  this 
strapping  six-foot  Irish  keeper — suggests  the  fact 
that  "Bloomingdale"  is  not  a  healthy  residence 
for  a  person  whose  death  w^ould  benefit  certain 
other  people  who  are  his  "heirs  at  law,  next  of 
kin,  and  inheritors  of  his  entire  estate" ;  and  I 
took  this  risk  of  daily  fighting  for  my  life,  nightly 
fighting  for  my  life,  with  either  maniac  or  keeper 
for  years,  in  order  that  I  might  get  out  of  "Bloom- 
ingdale"  according  to  law,  and  get  out  of  it  with 
the  slate  cleared  of  my  charges  against  illegal  lun- 
acy laws  of  New  York  and  the  rest  of  the  States 
of  the  Union  which  have  illegal  lunacy  laws. 

Having  made  this  voluminous  explanation,  the 
jury  can  understand  that  I  did  not  escape  until 
I  was  forced  to  escape  by  the  unfortunate  decision 
of  Mr.  H.  H.  Frost,  in  my  regard  aforesaid.  I 
was  willing  to  suffer  anything  short  of  death ;  I 
was  willing  to  suffer  the  risk  of  death,  the  daily 
risk  of  it  and  nightly  risk  of  it,  of  the  torment  of 
"Bloomingdale"  of  the  pain  in  my  spine  brought 
on  and  continued  by  my  presence  in  "Blooming- 
dale,"  the  deprivation  of  everything  that  makes 
life  worth  living,  my  living  in  a  hell  on  earth,  cut 
off  from  my  property,  from  my  budding  affairs 
which  held  out  another  fortune  to  me  beside  my 
own.  As  has  been  shown  on  the  record,  by 
the  letters  of  Albert  Legg,  I  received  an  offer — 
as  one  of  his  letters  shows — a  bona  fide  offer  of — 
in  round  numbers — five  hundred  thousand  pounds 
— 12,500,000 — for  my  self-threading  sewing  ma- 
chine attachment,  patented,  known  as  the  Self- 


125 


Threading  iSewing  AJachine  Company,  which 
took  a  prize — or  the  highest  award — at  the 
World's  Fair  at  Chicago,  and  for  which  forty  thou- 
sand dollars  worth  of  orders  Avere  booked  dur- 
ing that  Fair's  duration ;  besides  my  patent  pave- 
ment which  I  patented  myself,  which  also  received 
the  highest  award  at  the  said  Fair,  and  for  which 
I  received  an  offer  from  the  Mayor  and  Syndic  of 
Marseilles,  France,  for  the  paving,  ultimate  pav- 
ing, of  the  City  of  Marseilles,  if  my  paving  proved 
durable;  a  fact  which  had  already  been  proved 
by  its  having  been  laid  down  in  England  for  years 
in  a  private  place  where  the  public  would  not 
know  it,  or  see  it,  but  where  it  had  steam  rollers 
and  heavy  steam  English  machinery,  farm  ma- 
chinery, pass  over  it  daily.  The  business  men  of 
the  jury  will  readily  recognize  the  parental  in- 
terest and  care  that  I  would  naturally  feel  in  a 
patent  of  which  I  was  the  controlling  stockholder, 
a  one  hundred  thousand  dollar  patent,  paid  up; 
and  another  patent  in  which  I  had  put  thousands 
of  dollars  for  patent  rights — all  in  a  lapse  of 
years,  certainly  |25,000  for  the  patent  rights — 
without  which  patent  rights  I  would  never  have 
received  the  Marseilles  order,  which  I  did,  so  that 
the  jury  will  see  that  1  showed  business  acumen, 
judgment  and  foresight  in  investing  my  money 
in  patent  rights,  because  I  would  have  gotten  a 
return  from  them  had  I  been  able  to  close  the 
Marseilles  deal. 

The  jury  will  readily  recognize  the  parental 
care  I  had  for  my  two  said  business  infants,  one 
the  offspring  of  my  business  judgment — the  sew- 
ing machine  attachment — and  the  other  the  off- 
spring of  my  very  brain,  a  patent  which  I  had 


126 


myself  invented;  the  jury  will  readily  recognize 
the  parental  agony  (I  flag  the  Docs)  from  a  busi- 
ness point  of  view  I  suffered,  and  from  being 
separated  from  these  children  of  mine,  (I  flag 
the  Docs),  these  business  products  of  my  brain 
and  business  judgment,  whom  I  knew,  whom  I 
daily  knew  when  I  was  in  "Bloomingdale,"  were 
being  starved  to  death,  were  dying,  because,  like 
real  people,  live  children,  they  only  had  a  limited 
number  of  years  to  live,  seventeen  years  being  the 
life  of  a  patent;  I  need  not  expatiate  to  the  jury 
what  I  went  through  as  a  business  nmn,  and  as 
an  inventor,  ar/onics,  and  that  is  not  too  strong 
a  word,  I  assure  the  jury,  under  oath,  for  what 
I  suffered  from  this  business  agony,  this  business 
tragedy— it  is  nothing  else.  I  have  refrained 
from  touching  on  this  before  in  this  long  depo- 
sition— I  did  not  want  to  appear  to  work  on  the 
sentiments  or  emotions  of  the  jury,  and  I  do  not 
want  to  now,  but  it  is  absolutely  necessary  for 
me  to  show  that  I  only  escaped  from  "Blooming- 
dale"  because  I  had  to;  it  is  necessary  for  me  to 
show  that,  unless  I  am  willing  to  allow  my  repu- 
tation as  a  man  of  honor  to  be  smirched,  and  I 
say,  and  my  record  stands  for  it,  that  honor  is 
more  with  me  than  money  or  success  or  anything 
else,  and  I  would  rather  have  poverty  and  an  hon- 
orable name  than  riches  and  rascality.  My  vari- 
ous acts  and  utterances  on  paper  in  every  publi- 
cation prove  that  to  any  honest  and  intelligent 
mind ;  and  it  is  a  very  dear  and  precious  thing  to 
me  as  a  man  of  honor,  it  is  the  dearest  thing  to 
me  on  God's  earth.  It  is  dearer  to  me  than  the 
fact  that  I  am  an  American  citizen ;  it  is  the 
dearest  possession  that  I  have  got  that  I  have  an 


127 


imsmirched  honor,  imsiiiii-clicd  by  the  record,  un- 
sniirched  on  the  record,  proved  to  be  unsiiiirched 
on  the  record  of  the  fifty  years  coniino-  the  10th 
of  October,  1912;  for  that  reason  I  want -the  jury 
thoroughly  to  understand  the  temptation  I  was 
under  to  compromise  it'  the  dollar  cut  any  actual 
ice  in  my  scheme  of  existence  when  ()i)posed  to 
what  I  thoui^ht  was  right;  the  jury  will  remember 
that  my  patents  were  dying  daily  when  I  was 
thrown  into  ''Bloomingdale,"  the  jury  will  re- 
member that  I  was  offered  this  Marseilles  paving, 
the  paving  of  a  certain  portion  of  the  streets  of 
Marseilles,  before  I  was  hurled  into  "Bloominc:- 
dale,"  and  within  a  year  after  my  being  lodged 
in  that  den  of  vice  and  iniquity — its  jiroprietors 
are  vicious ;  I  do  not  mean  that  vice  takes  place  in 
"Bloomingdale"  —  its  proprietors  —  the  said 
''Forty  Thieves  of  Bloomingdale" — are  vicious, 
and  what  they  own  is  vicious  thereby ;  they  are 
proprietors  of  a  den  of  iniquity  because  thri/  are 
iniquitous  themselves  on .  the  record  in  turning 
me  into  a  galley  slave,  and  in  robbing  me  of  thou- 
sands of  dollars  a  year  as  aforesaid — within  a 
year  after  my  waking  up  and  finding  myself  in  a 
madhouse  for  life  on  a  perjured  charge  of  lun- 
acy, the  sewing  nuichine  attachment,  that  sewing- 
machine  adjustment  owned  by  the  said  Self- 
Threading  Sewing  Machine  Company  reached 
fruition,  and  was  adjusted  to  the  Singer  Machine, 
as  aforesaid,  which  fulfilled  the  conditions  offered 
me,  laid  down  to  me  by  the  London  capitalists, 
that  they  would  give  me  one  hundred  and  fifty 
thousand  dollars  for  the  rights  of  the  British  Isles, 
possibly  the  British  Colonies  also  thrown  in ;  the 
jury  will  see  the  terrible  temptation  1  was  under 


128 


from  the  very  day  I  got  into  "Bloomingdale"  to 
get  out  in  any  way  I  could,  even  at  the  price  of 
"hush  up"  aforesaid,  offered  to  nie  by  the  Ambas- 
sador of  the  other  side ;  nothing  but  a  sense  of 
duty — iron-bound  and  rock-ribbed — held  me  in 
that  cell  when  the  offer  was  made  to  me  that  I 
could  get  out  of  it :  the  doors  would  swing  open, 
swing  open  with  the  knowledge  of  Dr.  Lyon,  but 
quietly ;  not  to  the  knowledge  of  the  press,  not 
to  the  knowledge  of  the  Medical  Profession,  there 
was  a  seal  to  be  placed  on  my  lips  forever — hide- 
ous as  that  proposition  was,  it  was  made  to  me, 
and  nothing,  I  respectfully  submit  to  this  Court 
and  Jury,  but  a  certainly  working  sense  of  duty, 
a  mobilized  sense  of  dutv,  enabled  me  to  resist 
that  offer;  that  offer  was  made  years  before  my 
escape;  even  after  I  was  given  the  privilege  of 
walking  about,  I  did  not  escape  until  eighteen  cal- 
endar months,  there  or  thereabouts,  to  be  absolute- 
ly exact,  seventeen  months;  I  was  given  permis- 
sion to  walk  about  alone  in  June,  there  or  there- 
abouts, 1899,  and  I  escaped  Thanksgiving  Eve, 
1900,  seventeen  months  later.  The  jury  can  well 
imagine  that  when  I  was  walking  the  by-ways  and 
hedges  of  Westchester  County,  when  I  was  climb- 
ing the  mountains,  or  rather  the  certainly  high 
hills  of  that  section  of  Westchester,  the  tempta- 
tion to  keep  on  climbing  presented  itself  more 
than  once,  climbing  towards  the  South,  climbing 
for  liberty  and  home.  '^Home,  Sweet  Home,"  so 
to  speak,  hummed  itself  in  my  ears  in  the  breezes, 
in  the  summer's  zephyrs  and  wintry  blasts;  it 
rode  Avintry  blasts  and  whispered  to  me  ( I  am 
telling  the  truth ) ,  "You  are  a  damn  fool  to  stay 
here" ;  that  was  the  way  the  temptation  came  to 


129 


me — "You  are  a  damn  fool  to  stay  here;  walk 
away ;  you  have  got  the  strength  to  do  it ;  keep 
on  moving" ;  and  I  never  in  my  life  had  a  severer 
temptation,  I  am  frank  to  say,  than  to  resist  the 
whispers  and  yells  of  the  said  temptation.  And 
yet  I  did  it,  on  the  record.  I  did  not  go  until  JNIr. 
Frost  made  his  little  "break,"  until  Mr.  Frost  was 
as  good  as  his  name,  and  threw  a  frost  into  my 
affairs,  threw  a  very  bad,  hard,  black  frost  in  my 
affairs,  with  the  best  intentions  in  the  worhl. 
Frost  is  an  old  college  classmate  of  mine,  and  I 
have  nothing  but  the  kindest  recollections  of  our 
acquaintanceship.  He  used  to  tutor  me ;  he  taught 
me  law  and  coached  me  when  I  Avas  "cramming" 
for  examinations,  and  we  never  had  so  much  as 
a  hard  word  betw^een  us.  Frost  and  I,  so  I  ab- 
solve him  from  an  innocent  "break"  in  this  record. 
Furthermore,  this  [jarole  that  Dr.  Lyon  gave  me 
was  a  parole  with  a  string  to  it.  It  was  just  exact- 
ly like  a  cheque  which  ;•  highway  robber  forces  a 
citizen  to  draw  for  him  at  the  point  of  a  pistol, 
and  then  says,  "I  rely  on  your  honor  not  to  stop 
the  payment  of  this  cheque  between  now  and  noon 
tomorroAv,  when  I  let  you  go."  The  ethics  in  both 
situations  were  identical.  T  had  been  kidnapped 
by  Stanford  White,  perjured  into  "Blooming- 
dale."  I  was  up  against  a  very  tough  proposition. 
I  was  in  very  nmlodorous  company  through  no 
fault  of  mine.  Thev  were  holding  me  contrarv 
to  law  just  as  much  so  as  though  they  were  ac- 
tually brigands,  professional  brigands,  Jwnest 
brigands,  frankly  admitting  they  were  brigands, 
instead  of  the  double-faced  brigands  that  they 
are,  pretending  that  they  are  pillars  of  the  Church 
and  State  and  Finance.     I  was  absolutelv  with« 


(9) 


130 


out  any  standing  in  law ;  I  liad  been  deprived  of 
my  rights  and  rendered  a  dead  man,  rendered 
civiliter  mortims — civilly  dead.  An  incompetent 
person  or  lunatic  is  civilly  dead.  He  has  no 
rights;  he  cannot  transfer  property,  and  he  can- 
not vote  and  cannot  have  his  liberty,  as  in  my 
case.  He  must  be  locked  up  and  robbed  daily  for 
life.  I  knew  that  state  of  affairs  and  I  had  tol- 
erated it  for  nearly  four  years — three  years,  eight 
months  and  some  days — and  at  the  risk  of  my  life, 
and  at  the  possible  permanent  injury  of  my  health, 
for  I  still  have  an  affected  spine,  as  the  record 
shows.  This  was  no  more  a  parole  in  the  honest 
sense  of  the  word,  in  the  real  sense  of  the  word, 
than  a  cheque  which  is  given  at  the  point  of  a 
pistol  is  a  cheque  in  the  honest  sense  of  the  word ; 
it  is  not  the  intentional  passing  of  money  from  one 
party  to  another.  The  law  recognizes  that  any- 
thing which  is  given  "under  duress''  is  illegal  and 
has  no  binding  force  whatever.  A  cheque  given 
under  duress,  under  the  pistol  point,  is  illegal. 
A  man  can  stop  it.  That  is  what  I  mean  by  il- 
legal. It  is  an  illegal  way  of  getting  a  cheque. 
A  parole  f/iren  under  duress  is  illegal.  It  is  an 
illegal  loay  to  get  a  parole,  to  put  a  man  in  such 
a  hole  that  he  will  give  a  parole,  to  get  a  little 
fresh  air  without  a  keeper's  shadoui  in  front  of 
him  every  step  he  takes.  I,  as  a  lawyer,  knew 
that  this  parole  that  I  gave  was  absolutely  worth- 
less; it  had  no  binding  effect;  that  the  law  did 
not  expect  me  to  keep  it ;  that  the  Law  said  more ; 
the  Law  said :  "You  are  committing  a  fraud  if 
you  keep  this  parole  one  day  longer  than  you  are 
sure  that  you  are  able  to  get  out  of  'Blooming- 
dale'  and  show  uj)  this  iniquity,  or  at  least  one 


131 


day  longer  tlum  yon  begin  to  fear  that  von  will 
jeopardize  this  aforesaid  snreness  of  getting  out, 
and  turning  on  the  lights,  and  showing  the  in- 
iquity that  has  taken  place  in  your  ease,  and  will 
take  place  unless  checked  by  you — on  the  evi- 
dence, because  nobody  in  New  York  has  ever 
brought  an  action  against  'Bloomingdale'  for 
damages  tliat  has  ever  been  in  it.''  As  far  as  I 
know,  nobody  ever  has  made  a  move.  Although  I 
knew  that  this  parole  was  worthless,  yet  T  was 
held  by  that  parole  for  seventeen  months  on  the 
record  in  spite  of  the  whispers  of  freedom  and 
home  and  happiness  and  the  Sunny  South.  That 
shoivs  ivhether  I  did  lohat  I  could  to  oblige  Dr. 
Lyon,  and  not  disappoint  him.  But  there  was 
something  more  important  to  me  than  even  my 
own  honor.  There  is  one  thing  and  that  is  that 
injustice  shall  not  rule:  and  if  it  were  necessary 
for  me — I  frankly  say — to  lose  my  reputation,  to 
be  bracketed  w^ith  anv  of  the  biggest  criminals 
that  ever  lived — if  it  were  necessary  for  me  to  pay 
that  price — tvithout  committing  the  crime  be  it 
well  understood — but  if  T  were  to  be  maligned 
and  misunderstood  and  written  about  in  history 
as  one  of  the  biggest  criminals,  I  would  be  will- 
ing to  pay  that  price  /'/  that  loere  the  only  price 
which  could  put  injustice  in  law  out  of  business, 
I  would  be  willing  to  sacrifice  my  reputation, 
which  is  the  dearest  thing  to  me,  really  dearer 
than  anything,  dearer  than  life,  but  one  thing, 
and  that  one  thing  is  Ideality — is  the  greatest 
good  for  the  greatest  numher,  is  the  absolute  an- 
tagonism and  death  in  the  last  ditch  opposed  to 
wrong-doing  and  injustice — and  for  that  I  will 
sacrifice  everything,  even  my  reputation,  if  it  is 


132 


necessary.  I  won't  sacritice  that  like  a  fool,  but 
I  would  sacrifice  it  if  I  could  get  a  sure  return 
in  the  wiping  out  of  those  Lunacy  Laws,  //  being 
understood  all  the  time  that  I  do  not  have  to  com- 
mit any  crime — I  am  simply  accused,  of  being  a 
criminal.  I  have  to  say  that,  because  otherwise 
I  would  be  accused  of  ''having  broken  my  parole/' 
I  would  just  as  soon  be  accused  of  having  stolen 
a  man's  watch,  or  pocketbook,  as  being  accused 
rightfully  and  honestly  of  breaking  a  bona  fide 
military  parole.  Amongst  soldiers  a  parole  is 
given  by  one  honorable  foe  to  another,  but  that  is 
among  honorable  foes,  not  among  honorable  men 
opposed  by  footpads,  brigands  and  thieves,  as  I 
have  been  by  the  ''Forty  Thieves  of  Blooming- 
dale,"*  aforesaid,  and  robbed  of  ttventy  thousand 
dollars  by  that  gilded  and  well-groomed  gang  of 
prominent  New  Yorkers  and  pillars  of  the  Epis- 
copal and  Roman  Catholic  Church ;  Cornelius  N. 
Bliss  was  the  most  prominent  Roman  ('atholic 
and  devout  son  of  the  Church ;  Elbridge  T.  Gerry, 
as  I  remember,  is  an  inveterate  plate-passer,  and 
Joseph  H.  Choate  is  an  Episcopalian  of  (juite 
Bishop-like  proportions  and  rotundity.  I  do  not 
wish  to  be  understood  as  meaning  any  disrespect 
to  Bishops  when  I  say  this.  In  a  word,  this  parole 
was  a  farce.  I  got  it  out  of  Dr.  Lyon  on  a  bluff, 
so  to  speak,  I  bluffed  him.  I  knew  from  the  das- 
tardlv  wav  Ex-Senator  David  B.  Hill  had  left  me 
to  rot  in  "Bloomingdale,"  that  I  could  not  get  a 
New  York  lawyer  to  touch  my  case   unless  I  got 


*Plaintiff-in-error's  ironical  phrase  for  the  Board  of  Governors 
of  "Bloom  ingdale,"  in  his  satirical  history  of  New  York,  entitled 
"Four  Years  Behind  the  Bars  of  'Bloomingdale,'  Or,  The  Bank- 
ruptcy of  Law  in  New  York,"  published  in  1906. 


133 


his  ear  outside  the  walls  of  my  cell.  A  hint  is 
as  good  as  a  kick  to  uie.  Turned  down  once  is 
turned  down  forever,  as  far  as  I  am  concerned  on 
an}^  good  i)r()position.  So  T  gave  up  all  idea  of 
having  anything  to  do  with  lawyers  by  letter  or 
third  parties  until  I  got  outside  of  my  cell  and 
could  talk  to  them  at  Valhallaj  as  I  did  later. 
But  I  made  a  bluff  to  Dr.  Lyon,  and  when  he 
asked  me,  as  he  did  just  before  the  1899  pro- 
ceedings, asked  me  if  I  would  go  down  to  see  the 
jury  in  New  York  City,  and  I  told  him  I  was 
physically  incapacitated  from  doing  it — physi- 
cally— /  knew  that  my  presence  before  that  jury 
ivould  'ndoir  the  f/aff/'  irould  give  away  the  game, 
and  I  could  walk  out  of  the  court  a  free  man. 
They,  the  Chanler  family,  knew  that  as  well  as 
I  did.  That  is  why  they  set  the  proceedings  twen- 
ty miles  away.  I  "hanked'^  on  this  fear  of  Dr. 
Lyon's,  and  others,  that  I  would  by  hook  or  crook 
get  before  that  jury.  So  that,  although  I  told 
him  I  was  'not  able  to  get  there,  yet  I  kneio  that 
fear  was  so  chill  and  deadly  that  it  might  carry  a 
bluff,*  and  I  was  going  to  risk  it.  So  I  said,  in 
effect,  "Dr.  Lyon,  I  am  heartily  sick  of  seeing  the 
shadow  of  my  keeper  blotting  the  earth's  surface 
in  front  of  me  when  I  parade  these  grounds,  and 
I  do  not  propose  to  have  any  more  of  it,  and  if 


tThree  miles  from  White  Plains — where  "Bloomingdale"  is 
situated. 

*The  fear  that  I  was — after  all — able  to  get  there — the  bluf' 
consisting  in  assuming  tliat  plaintiff-in-error  could  get  to  court, 
and  not  that  he  could  not.  That  he  could — by  hook  or  crook — get 
a  lawyer  who  would  bring  habeas  corpus  proceedings — not  that  he 
was  marooned  and  utterly  cut  off  from  all  communication  with  the 
outer  world.  It  was  no  bluff  that  plaintiff-in-error  was  confined 
to  his  bed,  unable  to  walk  and  had  been  for  three  weeks,  since  Dr. 
Lyon  so  stated,  supra,  p.  105  of  this  Brief. 


134 


you  don't  give  me  perniission  to  walk  without  a 
keeper,  I  will  bring  habeas  corpus  proceedings." 

/  knetv  thundering  ivell  I  could  not  do  any  such 
thing;  it  ivas  a  bluff  of  the  rmikest  kind,  a  regular 
poker  bluff,  a  four-pusii.  I  had  no  way  of  bringing 
habeas  corpus  proceedings,  but  I  knew  they  were 
afraid  I  might  do  it  by  some  hook  or  crook. 
Thereupon  Dr.  Lyon  pondered  for  some  seconds 
and  said,  "Ver^-  well,  you  may  if  you  promise  to 
come  back."  I  promptly  said,  "I  will,"  and  I 
mean  now  to  "come  back''  and  look  over  "Bloom- 
ingdale"  so  soon  as  they  cleanse  the  filthy  Lunacy 
page  of  the  Statutes,  of  the  Statute  Books  of  the 
Empire  State,  and  it  is  safe  for  a  white  man  and 
honest  citizen  of  North  Carolina  to  present  him- 
self in  New  York  Avithout  danger  of  being  ar- 
rested for  life  and  robbed  to  the  tune  of  twenty 
thousand  dollars  a  year,t  and  then  I  will  "come 
back." 

I  hope  I  have  said  enough  to  show  that  I  was 
willing  to  risk  my  life,  to  practically  sacrifice  my 
patents — my  property  in  the  Self-Threading  Sew- 
ing Machine  and  Patent  Paving  which  I  invented 
— and  to  be  daily  bled  to  the  tune  of  one  hundred 
dollars  a  week,  to  suffer  all  that  for  the  sake  of 
honor,  and  for  the  sake  of  the  people,  for  the  sake 
of  being  able  to  save  laymen  and  laywomen  being 
hurled  into  "Bloomingdale"  on  these  bogus  Lun- 
acy Laws.  That  is  why  I  broke  my  "parole" 
falsely  so-called,  for  1  never  gave  a  parole  in  the 
true  sense  of  that  word,  and  this  is  all  borne  out 


tSYNDOCHDOCHE.  For  five  thousand  dollars  a  year  for  four 
years;  as  appears  from  the  remark  in  the  next  paragraph — "Daily 
bled  to  the  tune  of  one  hundred  dollars  a  week" — for  four  years 
would  equal  twenty  thousand  dollars. 

fStenographer's  error  for  "Synecdoche." 


135 


by  Dr.  Lyon's  words :  "He  is  a  very  honorable 
man" ;  and  that  was  said  after  two  years  knowl- 
edge of  nie  in  "Bloomingdale" ;  he  had  not  met  me 
that  afternoon  for  the  first  time. 

Mr.  Duke :  So  much  of  the  foregoing  answer  as 
is  argumentative  is  excepted  to  as  illegal,  and  all 
of  the  answer  which  is  practically  a  repetition  of 
what  has  been  heretofore  stated  in  the  deposition 
is  excepted  to  as  uselessly  encumbering  the  record 
and  consumption  of  valuable  time. 

Mr.  Chaloner:  My  only  excuse  is  that  my 
client's  interest  is  in  jeopardy  here  unless  thor- 
oughlv  safeguarded.  This  is  the  first  time  that 
the  question  of  parole  has  ever  come  up.  I  am  not 
criticizing  the  remarks  of  the  learned  counsel 
of  the  other  side ;  I  am  simply  defending  my  client 
in  this  respect  and  without  any  wish  to  encumber 
the  record. 

Adjourned  to  Thursday,  December  28th,  1911,  at  3  :00 
o'clock  P.  M. 

Chaloner  says  above:  He  gave  up  all  idea  of  having 
anvthing  to  do  with  lawvers  bv  letter  or  third  parties 
"until  I  got  outside  of  my  cell  and  could  talk  to  them 
at  Valhalla,  as  I  did  later."  How  much  later?  SOME 
EIGHT  OE  NINE  MONTHS  LATER.  He  did  not  re- 
cover sufficient  strength  to  walk  the  eight  miles  from 
White  Plains  to  Valhalla  and  back — four  miles  there  and 
four  miles  back — until  after  January  first,  1900,  as  a 
glance  at  the  excluded  Deposition  will  prove.  Chal- 
oner then  goes  on  to  show  how  he  managed  to  get  this 
very  rare  privilege  of  "parole"  out  of  Dr.  Lyon.     He, 


136 


in  fact,  says  he  "bluffed"  it  out  of  Dr.  Lyon,  relying  on 
the  dread  that  Dr.  Lyon  felt  lest  he,  Chaloner,  should 
get  before  a  jury  in  New  York,  and  thereby  "walk  out 
of  court  a  free  man."  He  says  he  "knew  that  fear  was 
so  chill  and  deadly  that  it  might  carry  a  bluff  and  I 
was  going  to  risk  it."  So  he  said  to  Dr.  Lyon  that  if 
he  did  not  give  him  parole  he  "would  bring  habeas  corpus 
Proceedings,"  though  he  knew  there  was  no  possibility 
of  his  doing  so.  He  had  already  replied  to  Dr.  Lyon's 
question  as  to  his  going  to  the  1 899  Proceedings  "twenty 
miles  away"  in  New  York  City  that  he  "was  physically 
incapacitated  from  doing  it."  Therefore,  it  was  a  "bluff" 
to  threaten  to  bring  habeas  corpus  Proceedings  under 
any  conceivable  conditions  seeing  that  he  could  neither 
walk  nor  comniunicate  freely  tvith  counsel. 

How  could  said  Choate  truthfully  make  said  state- 
ment that  from  the  above  passage  "it  abundantly  ap- 
pears that  he  absented  himself  from  the  1899  Hearing 
by  his  own  choice,  being  free  to  attend  and  to  consult 
counsel?"  But  it  throws,  we  respectfully  submit,  light 
upon  how  the  learned  Judge  Mayer  came  to  say:  "And 
it  further  appears  from  Chaloner's  deposition — that  he 
absented  himself  from  the  1899  Proceedings  by  his  own 
choice."  The  learned  Judge  not  having  time  to  read 
some  twenty  pages  from  said  excluded  Deposition,  very 
naturally  believed  what  said  Choate  had  printed  about 
it  in  his  brief. 

(R)  Mayer,  J.,  continues:  "But  the  propriety  and 
sufficiency  of  the  notice  as  matter  of  law  are  no  longer 
open  to  question,"  p.  188,  fol.  368. 

Fraud  opens  everything  for  revision.  As  has  been 
shown,  Chaloner  has  not  yet  had  his  day  in  court.  There- 
fore the  question  of  fraud  has  never  yet  been  passed 
upon.  U.  H.  V.  Throckmorton,  supra.  Also  Chanler  v. 
Sherman,     162     Fed.     Rep.       The  -Parallels,     supra. 


137 


First  reversal  of  the  United  States  Uireuit  Coiirt  of 
Appeals  by  the  United  States  District  Court.  Third 
rerersdJ  of  this  United  litotes  Cirriiit  Court  of  Appeals 
hy  itself. 

(S)  Mayer,  J.,  continuinji :  "Finally  in  repird  to  the 
failure  to  giye  ( 'lialoner  notice  of  the  resij'nation  of 
Butler  and  the  appointment  of  Sherman  as  Committee, 
it  appears  that  there  is  no  Statutory  requirement  of 
notice  in  such  a  proceeding  and  it  would  seem  that 
notice  to  the  Committee  of  a  proposed  removal  is  the 
only  notice  required,"  p.  188,  fol.  368. 

A  similar  case  concerning  notice  of  the  appointment 
of  a  Committee  is  found  in  the  leading  Insanity  case  of 
Evans,  Committee,  v.  Johnson,  23  L.  R.  A.,  737;  West 
Virginia  Supreme  Court  of  Appeals,  1894  (Indexed  in 
The  Nineteen  Points  of  Law,  infra  ) .  Brannan,  P.,  said : 
"There  is  abundant  authority  for  this  position.  Even 
thouf/h  the  statute  he  silent  as  to  notiee,  yet  the  com- 
mon law  steps  in  and  requires  it"  (citing  numerous 
leading  cases). 

(T)  Mayer,  J.,  continues:  "But,  if  notice  were  re- 
quired, the  failure  to  give  it  is  an  irregularity  which 
must  be  dealt  with  by  the  State  Court  of  original  juris- 
diction," p.  188,  fol.  368. 

From  not  giving  Chaloner  notice  in  the  1897  Proceed- 
ings and  not  giving  him  opportunity  to  appear  and  be 
heard  in  the  1899  Proceedings  the  State  Court  of 
"original  jurisdiction"  never  acquired  jnrisdiction  over 
Chaloner.  Windsor  v.  McVeic/h,  93  U.  S. ;  Simon  v. 
Craft,  182  U.  S. ;  U.  S.  v.  Throckmorton,  98  U.  S.,  supra; 
and  Chanler  v.  Sherman,  162  Fed.  Rep.  The  Parallels, 
supra.  Thirteenth  reversal  of  the  United  States 
Circuit  Court  of  Appeals  by  the  United  States  District 
Court.  Fourth  reversal  of  this  United  States  Circuit 
Court  of  Appeals  by  itself. 


138 


(U)  Mayer,  J.,  continues:  "Our  conclusion  is  that 
the  judgment  of  the  New  York  Court  was  not  a  void 
judgment  and  it  must  remain  valid  until  reversed  or 
set  aside  by  the  Courts  of  New  York,"  p.  189,  fol.  368. 

Chanler  v.  Sherman,  162  Fed.  Kep.  The  Parallels, 
supra.  Thirteenth  reversal  of  the  United  States 
Circuit  Court  of  Appeals  by  the  United  States  District 
Court.  Fifth  reversal  of  this  United  States  Circuit 
Court  of  Appeals  by  itself. 

(V)  Mayer,  J.,  continues:  "So,  too,  even  if  some  of 
the  requirements  of  the  statutes  had  been  omitted  or 
neglected,  or  insuftlcient  evidence  of  insanity  was  ad- 
duced, relief  must  be  obtained  in  the  Court  which  ap- 
pointed the  Committee,"  p.  189,  fol.  368.  Windsor  v. 
McVeigh,  Simon  v.  Craft,  U.  S.  v.  Throckmorton,  Chan- 
ler v.  Sherman,  supra.  The  Parallels,  supra. 
Thirteenth  reversal  of  the  United  States  Circuit  C^ourt 
of  Appeals  by  the  United  States  District  Court.  Sixth 
reversal  of  this  United  States  Circuit  Court  of  Appeals 
by  itself. 

(W)  Mayer,  J.,  continues:  "But,  however  this  may 
be,  we  think  that  this  Court  has  not  jurisdiction  to  set 
aside  or  annul  the  judgment  of  the  State  Supreme  Court 
rendered  in  a  Proceeding  in  which  it  obviously  has  jur- 
isdiction," p.  189,  fol.  369.  Windsor  v.  McVeigh,  supra; 
U.  S.  V.  Throckmorton,  supra;  Simon  v.  Craft,  supra; 
Chanler  v.  Sherman,  supra.  The  Parallels,  supra. 
Thirteenth  reversal  of  the  United  States  Circuit  Court 
of  Appeals  V)y  the  United  States  District  Court.  Sev- 
enth reversal  of  this  United  States  Circuit  Court  of 
Appeals  by  itself. 


THE  NINETEEN  POINTS  OF  LAW 

Supported  by  Argfument  and  Authority.* 


THE  LAW  IN  THE  CASE. 

The  law  in  the  case  eoveiiiiii  the  aforesaid  nineteen 
points  ( |)]).  14-25)  is  as  follows,  to  wit : 

Point  1. — The  ooniniitment  proceedings  were  void  for 
the  following  reasons,  to  wit:  There  was  fraud 
and  trickery  in  hiring  the  plaintiff,  John  Armstrong 
Chaloner,  a  citizen  of  Virginia,  into  a  foreign  jurisdic- 
tion for  the  purpose  of  depriving  him  of  lil)erty  and 
property  on  a  false  charge  of  insanity. 

It  will  be  remembered  that  plaintiff'  Avas  lured  by 
Mr.  Stanford  White  and  a  physician,  who  visited  plain- 
tiff in  plaintiff's  home  in  Virginia  in  February,  1897, 
was  lured  by  Mr.  Stanford  White  into  the  State  of  New 
York  on  the  plea  of  taking  "a  plunge  in  the  Metropoli- 
tan whirl"  on  the  ground  tha^:  plaintiff*  needed  a  change. 
That  so  soon  as  plaintiff  reached  New  York  City  steps 
were  taken  clandestinely  and  under  false  pretenses  by 
plaintiff's  said  brothers,  Messrs.  Winthrop  Astor  Chan- 
ler  and  Lewis  Stuyvesant  Chanler,  two  of  the  said  peti- 
tioners, that  steps  were  taken  clandestinely  by  said 
parties  working  through  the  said  physician  who  accom- 
panied Mr.  Stanford  White,  aforesaid,  to  the  plaintiff's 
said  home  in  Virginia;  and  also  working  through  Dr. 
Moses  Allen  Starr,  aforesaid;  and  finally  also  working 

*From  the  Trial  Brief  Chaloner  against  Sherman.  Printed  and 
copyrighted  1905. 


140 


through  said  Mr.  Stanford  Whit(»  himself,  who  proposed, 
through  a  third  party,  that  plaintiff  should  appoint  said 
Mr.  White  plaintiff's  power  of  attorney;  that  steps  as 
aforesaid  were  taken  by  plaintiff''s  said  brothers,  Messrs. 
Winthrop  Astor  Chanier  and  Lewis  Stuyvesant  Chanler, 
to  have  plaintiff  declared,  and  locked  up  as,  a  lunatic. 
The  following  two  cases  given  in  ewtenso  along  with  the 
following  five  cases  abstracted  substantially  sustain  our 
said  contention. 

Carprnter  v.  Hpooner,  2  Sandf.   (N.  Y.  Supr.  Ct. 
Kep.),717. 

This  Court  will  not  sanction  any  attempt,  by  fraud  or 
misrepresentation,  to  bring  a  party  within  its  jurisdic- 
tion. Where  a  party  having  been  induced  by  a  false 
statement  to  come  within  the  jurisdiction  of  the  Court 
for  the  purpose  of  effecting  service  upon  him,  was  then 
served  with  a  summons  and  complaint  in  an  action  in 
this  Court,  the  service  was,  on  motion,  set  aside. 

May  25th,  1850. 

Appeal  from  an  order  made  at  chambers,  setting  aside 
the  service  of  a  summons,  with  costs.  The  facts  appear 
in  the  decision. 

A.  Crist,  for  the  plaintiff*. 
Spooner^  for  the  defendant. 

"The  Court. — This  was  an  action  for  libel.  Both 
parties  reside  in  Brooklyn,  and  out  of  the  jurisdiction 
of  this  Court.  The  plaintiff,  however,  was  desirous  of 
having  the  case  tried  in  this  Court.  In  order  to  bring 
the  cause  within  its  jurisdiction,  it  was  necessary  that 
the  summons  should  be  served  within  this  City.  A  clerk 
of  the  plaintiff's  attorney,  therefore,  procured  a  person 
to  write  to  the  defendant,  requesting  him  to  call  on  the 


]41 


writer  next  day,  iii  this  City.  The  defendant  came,  in 
order  to  comply  with  the  request  in  the  letter,  and  when 
he  was  leaving;  the  ferry  boat  was  met  by  the  person 
who  had  written  the  letter,  and  was  served  with  the  sum- 
mons in  this  action.  The  whole  proceedin<>-  was  a  trick, 
for  the  purpose  of  i^ivinji  this  Court  jurisdiction. 

"The  excuse  alleged  by  the  plaintiff  is,  that  he  had 
been  so  libeled  by  the  defendant  and  others  in  Brook- 
lyn as  to  raise  the  public  feeling  there  against  him, 
and  he  could  not  hope  for  a  fair  trial  in  the  County 
of  Kings.  If  so,  there  is  a  sufficient  remedy  bv  moving 
the  Supreme  Court ;  and  we  have  no  doubt,  it  will,  on 
application,  be  properly  applied.  An  application  was 
made  to  set  aside  the  service  of  this  summons,  and  we 
think  it  was  well  founded.  This  Court  will  not  sanc- 
tion any  attempt  to  bring  a  party  Avithin  its  jurisdic- 
tion by  fraud  and  misrepresentation.  And  where  by 
false  statement  or  fraudulent  pretense,  a  party  is 
brought  within  the  jurisdiction,  and  there  served  with 
process,  the  service  will  be  set  aside.  We  recollect  a 
case  where  a  party  was  entrapped  into  this  State  out 
of  another  State,  and  then  served  with  process,  and 
there  the  service  was  set  aside. 

"If  a  party  who  is  not  within  the  jurisdiction  volun- 
tarily come  within  it,  he  thereby  becomes  amenable  to 
the  process  of  the  Court,  but  not  unless  he  comes  volun- 
tarily. This  Court  will  not  countenance  any  proceed- 
ing of  the  nature  adopted  in  this  case. 

"Appeal  dismissed  with  costs." 

The  Olran  Street  Railway  Company,  Respondent,  v. 
The  Fair  mount  Construction  Company,  Appellant, 
55  App.  Div.,  Supreme  Court,  4th  Department,  1900, 
p.  292. 


142 
Adams^  p.  J. :     Opinion  in  full : 

"The  defendant,  Tlie  Fairniount  Construction  Com- 
pany, is  a  foreign  corporation  organized  and  existing 
under  tlie  laws  of  the  State  of  New  Jersey. 

"At  the  times  hereinafter  mentioned  Clarence  P.  King- 
was  the  defendant's  Presideni  and  resided  in  the  City 
of  Philadelphia. 

"The  plaintiff  is  a  domestic  corporation  with  its  place 
of  business  in  the  City  of  Glean,  Cattaraugua  County, 
where  its  President,  Wilson  R.  Page,  resides. 

"The  summons  herein  was  issued  and  the  complaint 
verified  by  Page  on  the  25th  day  of  May,  1900,  and  on 
the  twenty-ninth  day  of  June,  following,  they  were  per- 
sonally served  within  the  State  upon  John  Forbes,  the 
appellant's  co-defendant. 

"At  this  time  Clarence  P.  King  was  claiming  that 
the  plaintiff  herein  was  indebted  to  him  in  the  sum  of 
1671.44  for  money  loaned  to  the  plaintiff  on  the  2ud  day 
of  December,  1897,  and  was  corresponding  with  Page, 
as  President  of  the  plaintiff,  with  a  view  to  having  his 
claim  adjusted  and  paid. 

"In  answer  to  a  letter  demanding  payment.  Page 
wrote  King  that  if  he  would  meet  him  in  New  York, 
the  latter  part  of  the  week  of  July  15th,  1900,  he  thought 
they  could  'come  to  some  conclusion.'  To  this  request 
King  assented,  and  suggested  the  seventeenth  day  of 
July  as  the  day  for  the  meeting,  whereupon  Page  again 
wrote  King  that  he  would  meet  him  at  the  Astor  House 
at  twelve  o'clock,  noon,  on  Saturday,  July  twenty-first. 

"The  parties  met  at  the  time  and  place  last  mentioned 
and  King  presented  his  claim,  which  Page  said  he  could 
not  settle  until  he  had  seen  a  former  Treasurer  of  the 
plaintiff,  and  while  conversing  in  regard  to  the  matter  a 
process  server  walked  in  and  served  the  summons  and 


Ull 


complaint  in  this  action  upon  King,  and  thereupon  the 
intervicAV  between  the  parties  terminated. 

"A  motion  was  thereafter  made  to  vacate  such  service 
upon  the  ground  that  King  was  induced  by  some  scheme 
or  device  to  come  within  the  jurisdiction  of  the  Courts 
of  this  State  in  order  that  service  of  process  might  be 
obtained  upon  him ;  and  it  must,  of  course,  be  conceded 
that  if  the  truth  of  the  appelUmfs  contention  were 
clearly  established,  service  secured ^by  such  means  should 
not  be  permitted  to  stand.  For  the  Court  will  not  sanc- 
tion any  attempt  by  fraud  or  misrepresentation  to  bring 
a  party  within  its  jurisdiction  {knelling  v.  Watrous, 
2  Paige,  314;  Carpenter  v.  ^yooner,  2  Sandf.,  717;  Met- 
calf  v.  Clark,  11  Barb.,  45;  Beacom  v.  Rogers,  79  Hun., 
220). 

"The  plaintiff's  President,  however,  denies  that  he 
invited  Mr.  King  to  come  to  the  City  of  New^  York  for 
the  purpose  of  obtaining  service  upon  him.  On  the 
contrary,  he  declares,  that  when  he  wrote  King,  sug- 
gesting that  city  as  the  place  of  meeting,  he  did  not 
even  know  that  he  was  the  defendant's  President,  and 
there  are  some  circumstances  in  the  case  which,  to  some 
extent,  give  color  to  the  statement;  but,  upon  the  other 
hand,  it  is  a  somewhat  remarkable  coincidence  that  the 
process  server  should  have  appeared  upon  the  scene  just 
as  the  two  Presidents  had  opened  negotiations  for  a 
settlement  of  the  demand  which  King  was  endeavoring 
to  have  adjusted,  and  that  as  soon  as  the  process  was 
about  to  be  served  Page  announced  that  he  could  do 
nothing  in  the  direction  of  settlement  until  he  had  seen 
a  former  Treasurer  of  the  plaintiff. 

"Assuming,  however,  that  the  coincidence  to  which  we 
have  referred  was  purely  accidental  and  not  the  result  of 
any  trick  or  device,  as  perhaps  we  ought,  in  view  of  the 
decision  of  the  Special  Term,  the  fact  remains  that  the 


144 


defendant's  President  was  induced  to  come  Avithin  the 
jurisdiction  of  the  Conrt  at  the  suggestion  of  the  plain- 
titf's  President,  and  for  the  express  purpose  of  adjust- 
ing a  claim  against  the  jdaijitiff  which  he  had  been  as- 
sured by  I*age  would  probably  then  be  adjusted.  In 
these  circumstances  we  think  that  good  faith  and  a 
due  regard  for  the  proprieties  of  the  case  required  of 
the  plaintiff  that  when  the  negotiations  for  a  settlement 
of  the  matter  which  broughi  the  parties  together,  ter- 
minated., a  reasonable  opporriinity  should  have  been  af- 
forded the  defendant's  President  to  leave  the  city  and 
state  before  any  attempt  was  made  to  serve  a  summons 
upon  him ;  and  inasmuch  as  this  Avas  not  done,  the 
plaintiff  ought  not  to  be  permitted  to  take  advantage 
of  a  course  of  conduct  which,  if  not  amounting  to  actual 
fraud  and  deceit,  was  certainly  equivalent  thereto  and 
would  involve  a  breach  of  the  confidence  which  King  had 
reposed  in  the  bona  fides  of  the  invitation  of  the  plain- 
tiff's President  to  place  himself  within  the  jurisdiction 
of  the  Court  i  Allen  v.  Wharton,  13  N.  Y.  Supp.,  38; 
Hif/f/ins  V.  Dewey,  34  N.  Y.  St.  Rep.,  692). 

''The  order  appealed  from  should,  therefore,  be  re- 
versed, and  the  motion  to  vacate  the  service  of  the  sum- 
mons and  complaint  granted." 

All  concurred,  Williams  and  Laughlin,  JJ.,  in  result 
only. 

A  clerk  in  the  office  of  plaintiff's  attorney,  after  many 
fruitless  efforts  to  serve  the  defendant,  who  resided  in 
I  the  State,  but  without  the  jurisdiction  of  the  Court, 
wrote  him,  as  though  desiring  a  business  interview  at  a 
place  within  the  jurisdiction.  Defendant  attended  and 
was  served  with  a  summons,  which  he  moved  to  set 
aside.     Held,  per  Ehrlich,  J.,  the  clerk  was  guilty  of 


145 


trickery,  from  which  his  principal,  though  ii;noraiit,  can- 
not be  allowed  to  gain  any  benefit. 

"The  decisions  are  uniform  that  such  deceit  vitiates 
the  service  of  legal  process,  but  if  there  were  no  prece- 
dent exactly  in  point  the  Court  would  not  hesitate  to 
make  one  of  the  case  at  bar." 

Wyckoff  V.  Packard,  20  Abb.  N.  C,  420   (N.  Y. 

City  Court  Special  Term,  1887). 
SnelUng  v.  Watrous,  2  Paige  (Ch.),  314  (1830). 

A  person,  against  whom  an  attachment  had  issued  for 
his  contempt  in  not  answering  in  an  equity  suit,  applied 
for  discharge  from  his  debts  under  the  Insolvent  Act. 
Plaintiff  in  the  civil  suit  opposed  the  discharge,  pro- 
cured an  order  for  his  examination,  and,  on  the  close  of 
it,  served  him  with  the  attachment  papers,  which  it  had 
previously  been  impossible  to  serve. 

Hch],  defendant's  application  to  be  discharged  from 
arrest  should  be  granted  : 

"Where  a  party  has  not  in  fact  !)eeu  guilty  of  any 
crime  this  Court  will  not  permit  the  complainant  to 
resort  to  any  unfair  and  inequitable  method  to  enforce 
the  process  of  attachment.  It  is  very  evident  that  the 
proceeding  before  the  recorder  to  pro(!ure  the  personal 
attendance  of  the  insolvent  was  a  mere  device  to  enable 
the  complainant  to  arrest  him  on  this  attachment.  I 
cannot  allow  a  party  thus  to  abuse  the  process  or  the 
remedial  ])<)wer  of  any  Court."     Pei-  Wolworth,  Ch. 

N.  Y.   Super.  (M.  1837  Gen'l  Term. 

J3alrr  v.  ]Va1r<^,  14  Abb.  Pr..  Rep.  (N.  S.)  331. 

On  appeal  from  order  vacating  arul  setting  aside  ser- 

(10) 


140 


vice  of  suiiiiiions  based  on  evidence  that  the  defendant 
was  induced  to  come  within  the  State  to  settle  the  claim, 
that  after  an  nnsnccessfiil  negotiation  he  was  served  at 
the  attorney's  office  with  a  summons  previously  prepared 
and  then  and  there  filled  out,  and  that  plaintiff's  attor- 
ney kept  summonses  in  his  office  for  that  purpose,  held^ 
per  Freedman,  J.,  the  evidence  sustained  the  finding 
"that  deceit  had  been  used  for  the  purpose  of  bringing 
defendant  within  the  jurisdiction  of  this  court — the 
service  of  the  summons  was  tlierefore  properly  vacated 
and  set  aside  (Carpenter  v.  Hpooner,  2  Sandf.  716)." 
Order  affirmed.     All  concur. 

Lagraves  Case,  Ih.  p.  333,  note  (Supreme  Ct.  1st  Dis- 
trict, Spec.  Term  1873)  held,  "a  party  brought  within 
the  jurisdiction  by  requisition  on  a  criminal  charge, 
made  with  design  to  get  him  here  so  as  to  hold  him  to 
bail  in  a  civil  action,  is  not  liable  to  arrest  in  a  civil 
puit  brought  bt/  those  at  irhose  iiisitaiirc  the  criminal 
l>i-(>c<'C(Jiiif/  was  .'Started.'' 

MetraJf  v.  (larl-,  41   I'.arl).  45   (1864.) 

Where  it  appears  that  the  defendant  "was,  through 
the  instrumentality  of  ])laintiff  or  of  those  acting  in 
his  behalf,  inveigled  into  this  State  for  the  purpose  of 
effecting  service  upon  liim  of  the  summons  in  this  ac- 
tion," held,  proper  to  vacate  service  of  the  summons  and 
all  subsequent  i)roceedings  based  thereon.  P(n'  Bockes, 
J.:  "Pie  was  enticed  within  the  jurisdiction  of  the 
court  for  a  purpose  to  which  the  court  will  not  give  its 
sanction — The   proceeding    was   a   trick." 

Point  2. — The  said  proceedings  were  void  for  the 
following  reason,  to-wit:  There  was  fraud  and  trickerv 
upon  the  part  of  the  Medical  Examiners  in  Lunacy  in 


147 


the  pay  of  the  petitioners,  who,  in  order  to  keep  pUiintiff 
in  ignorance  of  the  acts  of  the  said  petitioners,  and  that 
he  shonUl  have  no  knowledge  of  the  impending  action, 
npon  the  part  of  tlie  said  petitioners,  to  deprive  him 
of  liberty  and  property  on  the  said  false  charge  of  in- 
sanity, pretended  to  have  an  interest  in  trance-states 
and  requested  plaintiff  to  enter  a  trance  in  order,  as  they 
alleged,  that  they  might  for  purely  scientific  reasons,  note 
the  action  of  a  trance.  Plaintiff,  to  oblige  said  Examin- 
eiis  in  Lunacy,  who  never  announced  themselves  as  such, 
but  kept  said  fact  strictly  in  the  background,  and  ap- 
peared in  the  guise,  one  of  a  surgeon,  the  other  of  an 
oculist — entered  said  trance.  While  in  said  trance, 
plaintiff  made  some  remarks.  Said  remarks  form  the 
main  charge  against  the  sanity  of  the  plaintiff.  Said 
remarks  were  made  wholly  without  the  slightest  ratioci- 
nation or  volition  upon  plaintiff's  part,  except  that,  to 
oblige  the  said  surgeon  and  the  said  "oculist,"  he  per- 
mitted himself  to  enter  said  trance  and  while  in  said 
trance,  for  purely-  scientific  reasons,  temporarily  sur- 
rendered his  reasoning  and  speaking  faculties  to  the  in- 
fluence of  said  trance.  The  said  medical  men  expressed 
tJiemselves  as  interested  in  said  trance-phenomena,  and 
thereupon  took  their  departure.  They  visited  plaintiff 
on  one  otlier  occasion  when  the  trance  was  resumed. 
Thereupon  after  a  discussion  of  trances  in  general  and 
plaintiff's  in  particular,  said  parties  departed.  A  short 
time  tliereafter  the. "oculist"  appeared  and  brusquely  in- 
formed plaintiff,  who  was  at  his  rooms  at  a  hotel  in  New 
York  City,  at  which  he  was  temporarily  sojourning,  and 
in  which  rooms  the  said  conversations  had  taken  place, 
that  he  was  insane  and  that  he  must  accompany  said 
"oculist,"  who  now,  for  the  first  time,  disclosed  his  iden- 
tity, and  said  that  he  was  a  Medical  Examiner  in  lunacy 
employed  by  the  said  petitioners.     Plaintiff  laughed  at 


148 

the  allegations  of  iiisanit}',  and  requested  said  examiner 
in  hina(  y  to  state  the  gronnds  upon  which  said  allega- 
tion was  based.  Said  medical  man  tliereupoji  said,  "The 
things  you  said  in  the  trance."  Plain tilf  laughed  at  this, 
whereupon  said  medical  man  said:  "Don't  you  believe 
the  things  you  said  in  the  trance?''  Upon  which  plaintiff 
replied  with  an  emphatic  negative.  Plaintiff  declined  to 
accompany  said  medical  man,  wiiereupon,  some  twenty 
liours  later,  March  13th,  1897,  plaintiff'  was  arrested 
by  two  policemen  in  plain  clothes  in  his  said  roonis, 
and  taken  by  them  to  the  Society  of  the  New  York  Hos- 
pital at  White  Plains,  Westchester  County,  New  York, 
falsely  known  as  "Bloomingdale,"  and  there  incarcerated 
for  three  years  and  eight  months  in  a  barred  cell,  on  a 
false  charge  of  lunacy;  until  Thanksgiving  eve,  1900, 
when  plaintiff  escaped  and  lied  to  Philadelphia.  Plain- 
tiff" was,  of  course,  no  more  legally  accountable  for  what 
he  said  in  said  trance,  uiider  the  said  circumstances,  than 
he  would  have  been  legallv  accountable  for  remarks  made 
in  his  sleep. 

Point  3. — The  said  proceedings  were  void  for  the 
following  reason,  to-wit :  There  was  fraud  upon  the 
Court,  as  well  as  upon  the  party,  upon  the  part  of  the 
said  Medical  Examiners  in  Lunacy.  Said  medical  men 
doctored  plaintiff's  trance  utterances;  that  is  to  say, 
said  medical  men  divided  said  trance  utterances  into  two 
divisions.  The  iirst  division  said  medical  men  took 
out  of  the  said  trance  utterances,  and  placed  by  them- 
selves. The  second  division  said  medical  men  mixed; 
leaving  part  to  be  guessed  at  by  the  Court,  and  taking 
The  other  part  out  of  said  trance  utterances.  The  parts 
in  l)oth  instances  which  were  taken  out  of  the  trance 
utterances  were  stated  by  said  medical  men  as  hav- 
ing been  said  by  plaintiff',  leaving  it  to  be  inferred  that 


149 


said  parts  were  not  parts  of  said  trance  utterances,  but 
were  plaintiff's  own  views  whicli,  upon  the  evidence,  it 
being  admitted  by  said  medical  men  tliat  plaintiff  "fre- 
quently went  into  a  trance-like  state,"  upon  said  evidence 
tbey  empliatically  were  not.  Furthermore:  Said  medi- 
cal men  also  swore  that  plaintiff'  was  'Siolent"  and  "dan- 
gerous," two  allegations  profoundly  false,  and  totally 
<lisproved  by  plaintiff''s  conduct  at  the  time,  and  during 
the  three  years  and  eight  months  he  was  incarcerated  at 
White  Plains.  In  the  proceedings  in  1899  not  one  word 
was  said  about  plnintiff's  being  dangerous  or  harmful 
to  himself  or  anybody  else,  not  one  word  even  by  the 
paid  witnesses  of  the  other  side,  and  plaintiff  had  then 
been  for  over  two  years  under  observation. 

Point  4. — The  said  proceedings  were  void  for  the  fol- 
lowing reasons,  to-wit :  There  was  perjury  upon  the 
part  of  the  said  petitioners  who,  although  at  the  time  the 
said  falsely  alleged  acts  on  the  part  of  plaintiff  were 
falsely  sworn,  of  their  own  knowledge,  by  said  petition- 
ers, to  have  occurred  at  plaintiff's  home  in  A^irginia,  said 
petitioners  were  widely  separated  from  plaintiff ;  one  of 
the  said  petitioners  being  in  New  York,  one  of  the  said 
petitioners  being  in  New  England,  and  the  third  of  the 
said  petitioners  being  in  England. 

Point  5.— The  said  proceedings  were  void  for  the  fol- 
lowing reason,  to-wit:  There  was  fraud  upon  the  Court 
as  well  as  upon  the  party,  upon  the  part  of  the  said 
petitioners.  For  the  foundation  of  the  commitment  pro- 
ceedings had  in  New  York  City,  March  10,  1897,  was 
the  sworn  testimony  of  the  said  petitioners  who — with 
the  exception  of  the  said  medical  men — were  the  (mly 
witnesses  sworn  at  said  proceedings;  and  the  Court  re- 
lied upon  the  truth  of  the  oaths  of  said  petitioners  that 


150 


tlieir  said  allegations  against  the  plaintiff's  sanity  were 
of  their  oini  knowledge,  whereas  they  were  emphatically 
the  reverse. 

Point  (>. — Tlie  said  proceedings  were  void  hi  toto,  for 
ihe  reason  that  owing  to  the  fact  that  plaintiff  was 
kept  away  from  Court  by  perjury  and  trickery,  as  afore- 
Ksaid,  there  was  no  real  contest. 

Point  7. — The  said  x^i'ofeedings  in  1899  were  void  in 
toto,  for  the  reason  that  owing  to  the  fact  that  plaintiff', 
by  contrivance,  was  kept  away  from  Court,  there  ^^'as 
no  real  contest.  The  said  contrivance  being  that  in- 
stead of  setting  the  hearing  in  the  County  Court  House 
of  Westchester  County,  at  White  Plains,  where  plain- 
tiff was  confined,  said  hearing  was  set  in  Manhattan, 
over  twenty  miles  away.  This  was  done  to  keep  plaintiff 
out  of  Court,  for  said  petitioners  were  in  a  position  to 
know  of  plaintiff's  physical  disability,  aforesaid,  at  the 
time.  Whereas  had  said  hearing  been  set  at  White 
Plains  Court — less  than  a  mile  from  plaintiff's  cell — 
plaintiff  could  have  been  carried  there  in  a  carriage 
without  danger  of  injury  to  him;  or,  if  that  was  not 
flone,  committees  of  the  said  Commission  and  jury  could, 
in  an  hour,  have  visited  him  and  examined  him. 

Point  8. — The  said  proceedings  in  1899  were  void  for 
tlie  following  reasons,  to-wit : 

(a)  Tlie  only  evidence  of  plaintiff"s  alleged  incom- 
))etency  came  from  the  said  two  medical  men  in  the 
]>ay  of  the  other  side,  and  from  the  said  Medical  Super- 
intendent of  the  Society  of  the  New  York  Hospital. 
Said  evidence  was,  on  the  evidence  strictly  of  two  varie- 
ties, to-wit,  frivolous,  or  perjured.  The  basis  of  the 
allegations  of  the  two  said  medical  men  against  plain- 


151 

tiff's  competency  and  sanitj^  was  the  aforesaid  trance. 
At  the  special  request  of  said  medical  men  plaintiff,  for 
scientific  reasons,  entered  a  trance  in  order  that  he 
jiiight  liear  the  comments  thereon  of  two  medical  men 
who  alleged  that  they  were  interested  in  trances.  The 
only  time  that  plaintiff  entered  a  trance  during  his  stay 
of  three  years  and  eight  months  at  White  Plains  was 
in  the  presence  of  said  medical  men.  Plaintiff  did  not 
hesitate  to  do  this,  althougli  the  doing  of  it  had  already 
got  him  in  trouble,  for  the  reason  that  plaintiff  being  a 
lawyer  knew  his  rights,  and  knew  that  he  had  a  legal 
right  to  enter  a  trance.  Said  medical  men  had  deliber- 
ately  lied  to  plaintiff.  Said  medical  men  had  deliber- 
ately deceived  plaintiff.  Plainliff  upon  the  appear- 
ance of  said  medical  men,  had  at  once  asked  them  "Do 
•you  represent  anybody?"  To  which  they  both  promptly 
replied  tliat  they  represented  no  one.  That  the  reason 
for  their  visit  was  that  a  friend  of  plaintiff's,  whom  they 
voluntarily  and  without  questioning  upon  plaintiff's 
part,  named,  had  requested  them  .to  call  and  see  plain- 
tiff' as  said  friend  was  anxious  that  plaintiff  should  get 
out  of  "Blooming-dale."  Plaintiff'  later  communicated  with 
said  friend  and  found  that  there  was  not  a  word  of 
truth  in  said  medical  men's  assertion  toucliing  said 
friend's  share  in  said  medical  men's  visit.  It  developed 
later  that  said  medical  men  were  sent  by  the  other 
side  to  obtain  testimony  for  the  other  side  at  said  pro- 
ceedings in  1899.  The  portion  of  said  medical  men's 
said  testimonv  concerning  plaintiff's  said  trance  is,  of 
course,  frivolous,  from  a  legal  standpoint ;  a  party  hav- 
ing— under  the  said  circumstances — a  legal  right  to  enter 
a  trance. 

(b)  A  specimen  of  said  medical  men's  evidence  had  to 
do  witli  matter  touched  on  in  a  letter  attached  to  plain- 
tiff"'s  pi-esent  affidavit,  wliicli  letter  plaintiff  had  written 


152 

to  a  leoal  friend  on  March  2«,  1900,  requestiuo  him  to 
procure  counsel  for  [)laintilf  in  order  to  institute  haheas 
corjiHS  proceedings  to  procure  plaintiff's  release.    Plain- 
tiff in  said  conversation  with  said  medical  men,  touched 
on  in  said  letter,  stroiijilv  censured  the  parties  directly 
or  indirectly  interested  in  holding  plaintiff  a  prisoner 
on  a  false  charge,  and  under  void  proceedings.     Said 
medical  men  to  wliom  plaintiff  had  spoken  as  freely  upon 
said  topics  as  in  said  letter,  palpahly— as  will  appear 
upon  reading  said  ULedical  men's  sworn  evidence  at  the 
said  proceedings  in  1899,  and  as  will  appear  upcm  read- 
ing in  connection  therewith  plaintilf' s  said  attached  let- 
ter— said  medical   men   palpably  and  in  a   most  bare- 
faced and  preposterous  fashion   garbled  the  substance 
of  said  conversation  and  of  said  letter.     The  balance  of 
material  allegations  jue  on  a  par  with  above  for  bare- 
faced perjury.     Lastly,  said  medical  men  palpably  per- 
jured themselves  on  the  witness  stand  at  said  proceed- 
ings in  1899,  by  swearing  in  effect  that  plaintiff  was  not 
only  hopelessly  insane  and  incompetent,  but  that  plain- 
tiff was  increasingly  so,  and  that  plaintiff's  falsely  al- 
leged insanitv  and  falselv  alleged  incompetency  would  in- 
crease  with  the  lapse  of  time;  all  of  which  palpably  per- 
jurious allegations  have  been  almndantly  disproved  by 
plaintiff's  acts  since  said  trial,  and  by  plaintiff's  trial 
November  G,  1901,  in  the  County  Court  of  Albemarle 
County,  Virginia,  the  same  being  a  court  of  record,  in 
which  county  plaintiff's  home  is;  at  which  trial  plaintiff 
was  declared  both  sane  and  competent ;  said  trial  having 
been  instituted  by  a  neighbor,  upon  plaintiff's  reappear- 
ance at  plaintiff's  said  home  after  plaintiff's  said  escape, 
with  a  view  to  ascertaining  plaintiff's  sanity  and  com- 
petency; plaintiff  at  this  time  standing  under  the  said 
void  New  York  proceedings,  in  the  light  of  an  escaped 
lunatic,  whom  it  was  dangerous  to  allow  at  large.    Plain- 


153 


tiff  has  since  lived  continuously  at  his  said  home  in  Albe- 
marle County,  Virginia,  undisturbed. 

And  all  of  which  plaintiff-in-error  offered  to  prove  on 
the  trial  in  the  lower  Court,  but  was  barred  from  doing 
so  by  the  erroneous  rulings  of  the  learned  Trial  Judge 
(Folios  57-108-110,  111-112.) 


154 

RES  ADJUDICATA  AND  COLLATERAL  ATTACK, 

Right  to  Attack  Judgment  Collaterally. 


In  cqiiiiij,  a  judgment  iiiay  be  attached  and  impeached, 
hi/  /jrocecdings  to  prevent  enforcement,  upon  the  ground 
lliat  it  is  clearhj  "■against  conscience.^'  (pp.  194-198, 
Trial  Brief.) 

Marshall  v.  Hohnrs,  141  U.  S.,  5S9,  596.  Opinion 
by  tlie  learned  Mr.  Justice  Harlan. 

ArrotDsmith  \.  Gleason,  129  U.  S.,  86,  89. 
Opinion  by  Mr.  Justice  Harlan. 

Proof  that  the  )>artg  nominaUg  hound  hi)  the  judg- 
ment was,  in  fact,  kept  "awag  froin  Court"  hg  tricJcerg 
or  fraud,  will  suffice  as  a  ground  for  injuuctire  relief; 
proof  of  such  a  fact  shous  that  the  coutrorcrsg  ivaii 
not  suhstantial. 

U.  S.  V.  Throckmorton,  98  U.   S.,  616. 
Regnolds  v.  Etna,  160  N.  Y.,  635,  ()52,  653. 

The  former  adjudication  and  the  litigation  leading  up 
to  it  "must  he  such  not  utcrcli/  in  name,  hut  in  fact  and 
suJ}stance."' 

ilh.  citing  87  N.  Y.,  303;  137  N.  Y.,  259.) 

II. 

In  Courts  of  hur  wJicre  equitg  juxrers  arc  disclaimed 
the  general  rule  is  that  «  judgment  niag  he  impeached 
onlg  hg  direct  attack  (Drake  \.  N.  Y.  I^uh.  Co..  36  App. 


155 


Div.,  275,  279;  rheui.r  Mills  v.  Miller,  34  !St.  Kep.,  9i)l)  I  ; 
BUT  this  rule  is  subject  to  the  following  crccptiona: 

(1)  ^y(tnt  of  jurisdiction  in  fact  may  always  he 
shoivn. 

Scott  V.  MacyeiU,  154  V.  S.,  34. 
Smith  V.  Reed,  134  N.  Y.,  5(>8. 
Matter  of  Killan,  172  N.  Y.,  547. 

(2)  Fraudulent  or  collusive  disregard  of  the  rights 
of  the  party  nominally  hound  hy  the  judgment  may  he 
shoum;  the  theory  evidently  being  that  his  apparent  as- 
sent or  acquiescence  was  not  a  real  and  free  act  on  his 
part. 

.]faiid(  rillc  V.  Reiniolds.  (;s  N.  Y. 

(3)  When  the  judgment  attacked  collaterally  is  not 
the  judgment  of  the  forum  in  which  it  is  attacked,  even 
the  former  Utigation  of  jurisdictional  issues  is  not  neces- 
sarily conclusive,  as  it  would  he  if  such  issues  of  fact 
were  actually  litigated  and  determined  as  a  basis  of  a 
judgment  in  the  same  forum. 

Matter  of  Kimball,  155  N.  Y.,  62,  68. 

But  even  in  cases  where  Courts  of  general  jurisdic- 
tion are  vested  with  powers  of  confiscation  or  with  power 
to  adjudicate  in  rem,  and  the  hnv  provides  that  such  jur- 
isdiction be  exercised  only  in  cases  where  the  person 
whose  property  is  affected  is  civilly  dead  or  politically 
outlawed,  or  legally  non-resident,  the  judgment  in  rem 
is  not  conclusive  as  a  determination  of  the  jurisdictional 
facts  unless  the  person  affected  has,  hy  due  process  of 
law,  been  su)nmoned  to  appear  and  had  a  fair  oppor- 
tunity to  he  heard  as  to  his  status. 


156 


Chapman  v.  Phenix  N.  Bank,  85  N.  Y.,  437. 
H^cott  V.  MacNeill,  154  U.  S.,  34. 

At  one  time  it  was  supposed  to  be  the  law  that  the 
Surrogate  might  practically  confiscate  a  man's  prop- 
erty, by  adjudicating  him  to  b<'  dead  and  issuing  letters 
of  administration  upon  his  estate  (Roderu/as  v.  East 
River  tSavings  Institution), 'hut  this  doctrine  has  been 
practically  abandoned  (172  N.  Y.,  557)  ;  since  the  U.  S. 
Supreme  Court  held  that  it  tended  to  deprive  persons 
of  property  without  due  process  of  law. 

Scott  V.  MacNeill,  154  U.  S.,  34. 

It  is  the  fact,  not  the  adjudication  thereof,  which  vests 
jurisdiction. 

People  ex  rel.  Gould  v.  Barker,  150  N.  Y.,  52,  57. 
Overly  v.  Gordon,  171  U.  S.,  21,  22. 

And  the  party  to  be  concluded  by  a  determination  of 
facts  jurisdictional,  must  appear  to  have  had  a  substan- 
tial, and  not  merely  a  nominal  opportunity  to  be  heard ; 
the  issue  must  have  been  both  "litigated  and  decided" 
in  the  former  action  (160  N.  Y.,  653). 

( This  closes  the  aforesaid  excerpt  from  APPEAL 
BRIEF  in  Chaloner  against  Sherman  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Second  Circuit. ) 


We  append  hereto  pertinent  extracts  from  recent  de- 
cisions, bearing  upon  the  general  propositions  above 
outlined. 


157 


Matter  of  Law,  50  App.  l)iv.  454,  457. 

As  the  decree  is  limited  in  its  biiidiii*;-  effect  to  the 
thing'  which  it  operates  upon,  it  remains  o])en  to  be 
controverted  as  to  all  the  grounds  and  incidental  facts 
upon  which  it  professes  to  be  founded.  {Durant  V. 
Ahendroih,  97  N.  Y.,  132.) 

The  want  of  jurisdiction,  either  of  subject-matter  or 
person,  renders  the  judgment  a  nullity,  and  it  may  be 
attacke<l  in  any  form,  either  dij-ectly  or  collaterally. 
{Kerr  v.  Kerr,  41  N.  Y.,  'ITI ;  Pennoyer  v.  ^^ef,  95  U.  S., 
714.) 

"Judgments  of  superior  courts  exercising  general  jur- 
isdiction are  attended  by  a  presumption  that  they  have 
been  regularly  and  legally  rendered,  and  when  the  rec- 
ord does  not  disclose  that  the  court  acquired  jurisdiction 
it  will  be  i)resumed  until  the  contrary  appears.  [Chen- 
ung  Canal  Bank  v.  Jndson,  8  N.  Y.,  254;  Pacific  Pneu- 
matic Gas  Co.  V.  Wheelock,  80  Id.,  278;  Potter  v.  Mer- 
chants' Bank,  28  Id.,  041 ;  Galpin  v.  Page,  18  Wall.,  350.) 
But  where  such  courts  exercise  a  special  statutory  power 
not  according  to  the  course  of  common  law,  no  such 
presum])tion  obtains,  and  they  may  be  attacked  col- 
laterally. (Steph.  Dig.  Ev.  [Chase's  ed.],  pp.  97,  98, 
note,  and  cases  cited.) 

O'Donoghue  v.  Boies,  159  N.  Y.,  87,  at  98. 

Per  O'Brien^  J. : 

"When  a  party  interposes  the  judgment  of  a  court  as 
the  foundation  of  his  title  or  claim,  the  want  of  juris- 
diction in  the  court  to  render  the  judgment  may  always 
be  set  up  against  it  when  sought  to  be  enforced,  or  when 
any  benefit  is  claimed  under  it  by  the  party  in  whose 
favor  it  was  rendered,  or  by  any  one  claiming  under  him. 


158 


It  is  always  open  to  the  party  against  whom  the  judg- 
ment is  offered  to  prove  the  want  of  jurisdiction  in  the 
court,  even  though  such  proof  contradicts  recitals  in  the 
record.  In  the  case  of  judgments  recovered  in  the  courts 
of  other  States  which  are  to  be  given  full  faith  and  credit 
here  under  the  Federal  Constitution,  the  record  may  be 
impeached  for  want  of  jurisdiction,  even  by  extrinsic 
evidence,  and  the  same  is  true  with  respect  to  domestic 
judgments.  Whenever,  therefore,  a  judgment  is  inter- 
posed as  a  claim  or  the  foundation  of  a  title,  the  party 
against  whom  it  is  offered  may  show  that  it  is  void,  and, 
therefore,  that  the  supposed  record  is  not  in  truth  a 
record  at  all.  No  court  or  judicial  officer  can  acquire 
jurisdiction  by  the  mere  assertion  of  it,  or  by  errone- 
ously alleging  the  existence  of  facts  upon  which  juris- 
diction depends.  If  the  court  had  no  jurisdiction,  it 
had  no  power  to  make  a  recoid,  and  the  supposed  record 
is  not  in  truth  entitled  to  the  character  of  a  judgment. 
These  propositions  have  been  settled  in  this  court  once 
for  all  in  the  case  of  Fcrf/uson  v.  Crawford  (70  N.  Y., 
253).  In  the  opinion  of  Judge  Rapallo,  which  covers 
the  whole  field  of  discussion,  the  positions  stated  are 
sustained  by  a  weight  of  argument  and  a  wealth  of  illus- 
tration which  leaves  nothing  further  to  be  said  on  the 
subject.  The  statement  of  Judge  Andrews  in  the  case 
of  Risley  v.  Phcnix  Bank  (83  N.  Y.,  337)  may  also  be 
referred  to,  where  it  is  said :  'But  a  court  authorized 
by  statute  to  entertain  jurisdiction  in  a  particular  case 
only,  if  it  undertakes  to  exercise  the  power  and  juris- 
diction conferred  in  a  case  to  which  the  statute  has  no 
application,  acquires  no  jurisdiction,  and  its  judgment 
is  a  nullity,  and  will  so  be  treated  when  it  comes  in 
question,  either  directly  or  collaterally.'  These  cases 
have  been  repeatedly  approved  and  followed  in  this  court 
as  a  correct  expression  of  the  law  on  the  question  of 


159 


jurisdiction.  (Craig  v.  Toicn  of  Andes^  93  N.  Y.,  405; 
People  e.r  rel.  Frei/  v.  Warden,  etc.,  100  Id.,  24;  C.  C. 
Bank  v.  Parent,  134  Id.,  530;  Hniith  v.  Reid,  Id.,  571; 
Beardslee  v.  Dolge,  143  Id.,  1G5;  Vials  v.  P.  <l-  M.  R.  R. 
Co.,  123  Id.,  455;  Bogart  v.  1).  L.  tG  W.  R.  R.  Co.,  145 
Id.,  287;  People  v.  Gardner,  144  Id.,  120;  Losei/  v.  Stan- 
ley, 147  Id.,  560;  Warren  v.  Lniou  i?«7^fc,  157  Id.,  259.) 
"The  want  of  jurisdiction  to  render  the  particular 
judgment  nuiv  always  be  asserted  and  raised  directly 
or  collaterally,  either  froni  an  inspection  of  the  record 
itself  when  offered  in  behalf  of  the  party  claiming  un- 
der it,  or  upon  extraneous  proof,  which  is  always  ad- 
missible for  that  purpose.  There  is  but  one  solitary  ex- 
ception to  this  rule,  and  that  is  in  a  case  where  juris- 
diction depends  on  a  fact  that  is  litigated  in  a  suit  and 
is  adjudged  in  favor  of  the  ])arty  wIjo  a^ers  jurisdic- 
tion, then  the  (luestion  of  jurisdiction  is  judicially  de- 
cided, and  the  judgment  record  is  conclusive  on  that 
question  until  set  aside  or  reversed  by  a  direct  proceed- 
ing.     {Ferguson  V.  Crairford,  supra,  i 


* 


"While  a  court  may  acquire  jurisdiction  sufticient  to 
exempt  its  judgment  from  collateral  attack  by  deciding 
a  disputed  (|uestion  of  fact  erroneously,  it  has  never  been 
iield  that  it  can  accpiire  jurisdiction  for  any  purpose  by 
an  error  of  law." 

Ferguson  v.  Crairford,  70  N.  Y.,  253. 
Chief  Justice  Rapallo  said  : 

"He  is-  souf/ht  to  he  held  bound  hg  a  judgment 
U'Jicn  he  was  never  pcrsonallg  sinnnioned  or  had 


160 


notice  of  the  proceeding,  idiich  result  has  been 
frequently  declared  to  he  contrarij  to  the  first  prin- 
ciples of  justice,  and  tins  is  soniiht  to  be  ac- 
coiiiplislied  by  means  of  a  judi!;niont  entered  upon 
forjied  papers.  No  principle  of  public  policy 
requires  or  sanctions  sustainiui*  such  a  judii- 
ment. 

"It  is  an  elenientanj  princijdr  recof/nized  in  all 
cases,  that,  to  give  bin  ding  effect  to  a  judgment 
of  any  Court,  whether  of  general  or  limited  juris- 
diction, it  is  essential  that  the  Court  should  have 
jurisdiction  of  the  persou  as  well  as  the  suhject- 
niatter,  and  that  the  want  of  jurisdiction  over 
either  may  always  be  set  up  against  a  judgment 
when  sought  to  be  enforced,  or  any  benefit  is 
claimed  under  it." 

When  we  come  to  consider  the  effect  of  these  authori- 
ties, it  is  difticult  to  find  any  solid  ground  upon  which 
to  rest  a  distinction  between  domestic  judgments  and 
judgments  of  sister  States  in  regard  to  this  question, 
for  under  the  provisions  of  the  Constitution  of  the  United 
States,  which  require  that  full  faith  and  c-redit  shall  be 
given  in  each  State  to  the  puldic  acts, records  and  judicial 
proceedings  of  every  other  State,  it  is  now  well  settled 
that  when  a  judgment  of  a  court  of  a  sister  State  is  duly 
proved  in  a  court  of  this  State,  it  is  entitled  here  to  all 
the  effect  to  which  it  is  entitled  in  the  courts  of  the 
State  where  rendered.  If  conclusive  there  it  is  equally 
conclusive  in  all  the  States  of  the  Union ;  and  whatever 
pleas  would  be  good  to  a  suit  therein  in  the  State  where 
rendered,  and  none  others  can  be  pleaded  in  any  court  in 
the  United  States.  (Hampton  v.  McConnell,  3  Wheaton, 
234;  Story  Com.  on  Cons.,  Sec.  183;  .1////.V  v.  Duryee,  7 
Cranch,  481.) 


k;  1 


But  aside  fi'(>in  this  observation  as  to  the  effect  of  the 
authorities,  an  examination  of  tlieni  s1ioa\s  that  our 
courts  did  in  fact  proceed  upon  a  ground  common  to 
botli  classes  of  iucliinients.  The  reasons  are  fiiUv  stated 
in  the  case  of  Starhuck  v.  Murray  (5  Wend.  148).  In 
that  case,  which  was  an  action  upon  a  Massachusetts 
judgment,  the  defendant  pleaded  that  no  process  was 
served  on  him  in  the  suit  in  which  the  judgment  sued 
on  was  rendered,  and  that  he  never  appeared  therein  in 
person  or  by  attorney,  and  this  plea  was  held  good,  not- 
withstanding that  the  record  of  the  judgment  stated  that 
the  defendant  appeared  to  the  suit.  ^Marcy,  J.,  in  deliver- 
ing the  opinion  of  the  court,  and  referring  to  the  argu- 
ment that  the  defendant  was  estopped  from  asserting  any- 
thing against  the  allegation  of  his  appearance  contained 
in  the  record,  says:  "It  appears  to  me  that  this  proposi- 
tion assumes  the  yery  fact  to  be  established,  which  is  the 
only  question  in  issue.  For  what  i)urpose  does  the  de- 
fendant question  the  jurisdiction  of  the  court?  Solely 
to  show  that  its  proceedings  and  judgments  are  void, 
and  therefore  the  supposed  record  is  not  in  truth  a 
record.  If  the  defendant  had  not  proper  notice  of,  and 
(lid  not  appear  to,  the  original  action,  all  the  State 
( 'ourts,  with  one  exception,  agree  in  opinion  that  the 
paper  introduced,  as  to  him  is  no  record.  But  if  he  can- 
not show  even  against  the  pretended  record  that  fact,  on 
the  alleged  ground  of  the  uncontrollable  verity  of  the 
record,  he  is  deprived  of  his  defense  by  a  process  of  rea- 
soning that  is  to  my  inind  little  less  than  sophistry.  The 
plaintitf  in  effect  declares  to  the  defendant — the  paper 
declared  on,  is  a  record,  because  it  says  you  appeared; 
and  you  aj^peared,  ])ecause  the  paper  is  a  record.  This 
reasoning  is  in  a  circle.  The  appearance  makes  the 
record  uncontrollable  verit^^,  and  the  record  makes  the 
appearance  an   unimpeachable  fact."    And  again  at  p. 

(11) 


162 


I  GO  lie  savs:  ''To  sav  Hiat  tlie  defendant  may  show  the 
siil)j)Osed  record  to  be  a  nullity,  by  showing  a  want  of 
jurisdiction  in  the  court  which  made  it,  and  at  the  same 
tiiiit.'  to  estop  him  from  doing  so  because  the  court  has 
inserted  in  the  record  an  allegation  which  he  offers  to 
prove  untrue,  does  not  seem  to  me  to  be  very  consistent." 
This  is  but  an  amplitication  of  what  is  sometimes  more 
biiefly  expressed  in  the  books,  that  where  the  defense 
goes  to  defeat  tbe  record,  there  is  no  estoppel.  That  the 
reasoning  of  ^Marcy,  J.,  is  api^licable  to  domestic  judg- 
ments, is  also  the  oininion  of  the  learned  annotators  to 
Phillip's  Evidence.  (Cowen  and  Hill's  notes  1st  Ed.,  p. 
801 J  note  551.)  Referring  to  the  o})inion  of  Marcy,  J.,  be- 
foi-e  cited,  they  say:  ''The  same  may  be  said  respecting 
any  judgment,  sentence  or  decree.  A  want  of  jurisdiction 
ill  the  court  pronouncing  it  may  always  be  set  up  when  it 
is  sought  to  1)0  enforced,  or  Avhen  any  benefit  is  claimed 
under  it;  and  the  [)rinciple  which  ordinarily  forbids  the 
impeachment  or  contradiction  of  a  record  has  no  sort 
of  application  to  the  case.''  The  (JicUi  of  our  judges  are 
all  to  the  same  effect  altliough  the  precise  case  does 
Hoi  seem  to  have  arisen.  In  IHf/cJoir  v.  ^^tcaiiis  (19 
Johns.,  11)  Spencer  Ch.  J.,  laid  down  the  broad  rule 
til  at  if  a  court,  whether  of  limited  jurisdiction  or  not, 
undertakes  to  hold  cognizance  of  a  cause  without  hav- 
ing gained  jurisdiction  of  the  person  by  having  them 
before  them  in  the  manner  required  by  law,  the  pro- 
ceedings are  void.  In  Latham  v.  Edgertoii  (9  Cow., 
227),  Sutherland,  J.,  in  regard  to  a  judgment  of  a  court 
of  common  pleas,  says:  "The  principle  that  a  record 
caiinot  be  impeached  by  pleading,  is  not  applicable  to 
a  case  like  this.  The  want  of  jurisdiction  is  a  matter 
that  may  alwa.ys  be  set  up  against  a  judgment  when 
sought  to  be  enforced  or  where  any  benefit  is  claimed 
under  it."    Citing  MifJs^  v.  Martin.  (19  Johns.,  33.)     He 


163 


also  sav8  (pai^e  229)  :    "The  plaintiff  below  iiijoht  have 
api)lied  to  the  court  to  set  aside  their  proceedings,  but 
he  was  not  bound  to  do  so.  He  had  a  i-ij^ht  lo  lie  by  uutil 
the  judnnient  was  set  up  against  him,  and  then  to  show 
that  the  proceedings  were  void  for  want  of  jurisdiction. 
In  Bar  is  v.  Packard  (fi  Wend.  327,  332),  in  the  Court  of 
Errors,  the  CMiancellor,  speaking  of  domestic  judgments, 
says:     ''If  the  jurisdiction  of  the  Court  is  general  or 
unlimited  both  as  to  parties  and  subject-matter,  it  will 
be  presumed  to  have  had  jurisdiction  of  the  cause  unless 
it  appears  affirmatively  from  the  record,  or  J)y  shoiving 
of  the  party  denying  the  jurisdiction  of  the  court,  that 
some  special  circumstances  existed  to  oust  the  court  of 
its  jurisdiction  in  that  particular  case."     In   Bloom  v. 
Burdick   (1  Hill,   130),   Bronson,  J.,  says:     ''The  dis- 
tinction between  superior  and  inferior  courts   is  not  of 
much  importance  in  this  particular  case,  for'  whenever 
it  appears  that  there  was  a  want  of  jurisdiction,  the 
judgment  will  be  void  in  whatever  court  it  was  rendered," 
and  in  People  v.   Cassels   (5  Hill  164,  168),  the  same 
learned  judge  makes  the  remark,  that  no  court  or  officer 
can   acquire  jurisdiction  by  the  mere  assertion  of  it. 
or  by  falsely  alleging  the  existence  of  facts  upon  which 
jurisdiction  depends.     In  Harrington  v.  The  People  (6 
Barb.,  607,  (JIO),  Paige,  J.,  expresses  the  opinion  that  the 
jurisdiction  of  a  court,  whether  of  general  or  limited 
jurisdiction,  may  be  inquired  into,  although  the  record 
of  the  judgment  states  facts  giving  its  jurisdiction.     He 
repeats  the  same  view  in  Noyes  v.  Butler  (6  Barb.,  613, 
617),  and  in  Hurd  v.  i^hipnuui  (6  Barb.,  621,  623,  62-^), 
where  he  says  of  superior  as  well  as  inferior  courts,  that 
the  record   is  never  conclusive  as  to  the  recital  of  a 
jurisdictional  fact,  and  the  defendant  is  always  at  liberty 
to   show   a    want   of  jurisdiction,   although    the   record 
avers  the  contrary.     If  the  court  had  no  jurisdiction,  it 


164 


had  no  power  to  make  a  record,  and  the  snpposed  record 
is  not  in  truth  a  record.  (Citing  i^tarhnck  v.  Minray, 
5  Wend.,  158. )  The  language  of  Gridley,  J.,  in  Wright 
V.  Douglass  (10  Barh.,  97,  111),  is  still  more  in  point. 
He  observes :  "It  is  denied  by  counsel  for  the  plaintiff, 
that  want  of  jurisdiction  can  be  shown  collaterally  to 
defeat  a  judgment  of  a  court  of  general  jurisdiction. 
The  true  rule,  however,  is  that  laid  down  in  the  opinion 
just  cited  (op.  of  Bronson,  J.,  in  Bloom  v.  Biirdick,  1 
Hill,  138  to  143),  that  in  a  court  of  general  jurisdic- 
tion it  is  to  be  presumed  that  the  couil  has  jurisdiction 
till  the  contrary  appears,  but  the  want  of  jurisdiction 
may  always  be  shown  hg  evidence,  except  in  one  soli- 
tary case,  vi/ :  ''When  jurisdiction  depends  on  a  fact 
that  is  litigated  in  a  suit,  and  is  adjudged  in  favor  of 
the  party  who  avers  jurisdiction,  then  the  (piestioa  of 
jurisdiction  is  judicially  decided,  and  the  judgment 
record  is  conclusive  evidence  of  jurisdiction  until  set 
aside  or  reversed  by  a  direct  proceeding."  *  *  * 

In  the  Chenung  Canal  Bank  v.  Jadson  (8  N.  Y.,  254), 
the  general  principle  is  recognized,  that  the  jurisdiction 
(►f  any  court  exercising  authority  ovei-  a  subject  may  be 
inquired  into,  and  in  Adams  v.  The  Saratoga  and  Wash- 
ington R.  R.  Co.  (10  N.  Y.,  328,  333),  Gridley,  J.,  main- 
tains as  to  the  judgments  of  all  courts,  that  jurisdiction 
may  be  inquired  into,  and  disproved  by  evidence,  not- 
withstanding recitals  in  the  record  and  says  that  such 
is  the  doctrine  of  the  courts  of  this  State,  although  it 
may  be  different  in  some  of  the  other  States,  and  per- 
haps also  in  England,  and  he  says  "the  idea  is  not  to 
be  tolerated  that,  the  attorney  could  make  up  a  record 
or  decree,  reciting  that  due  notice  was  given  to  the 
defendant  of  a  proceeding,  when  he  never  heard  of  it, 
{<nd  the  decree  held  conclusive  against  an  offer  to  show 
this  vital  allegation  false.     *  *  * 


165 


And  in  Bolton  v.  JacLs-  ((>  Rob.  108),  Joiios,  J.,  says 
that  it  is  now  conceded,  at  least  iu  this  State,  that  want 
of  jni'isdiction  will  render  void  the  judi'inent  of  any 
conrt,  wliether  it  he  of  snperioi'  or  inferior,  of  j^eneral, 
limited  or  local  jurisdiction,  or  of  record  or  not,  and 
the  bare  recital  of  jurisdictional  facts  in  the  record 
of  a  judgment  of  any  court,  whether  superior  or  in- 
ferior, of  general  or  limited  jurisdiction,  is  not  con- 
clusive, but  only  pvima  facie  evidehce  of  the  truth  of 
the  fact  recited,  and  a  party  against  Avhom  a  judg- 
ment is  offered,  is  not  by  the  bare  fact  of  such  recitals 
estopped  from  showing,  by  affirmative  proof,  that  they 
were  untrue  and  thus  rendering  the  judgment  void  for 
want  of  jurisdiction.  He  cites  in  support  of  this  opinion, 
several  of  the  cases  whicli  I  have  referred  to  and  Dohson 
V.  Pearce  (12  N.  Y.,  107  j,  and  Hatcher  v.  Rochcleau  (18 
N.  Y.,  92). 

It  thus  appears  that  the  current  of  judicial  opinion 
in  this  State  is  verv  strong  and  uniform  in  favor  of  the 
proposition  stated  by  Jones,  J.,  in  G  liob.  198,  and  if 
adopted  here,  is  decisive  of  the  present  case.  It  has  not 
as  yet,  however,  been  directly  adjudicated,  and  if  sus- 
tained, it  must  rest  upon  the  local  law  of  this  State,  as 
it  finds  no  support  in  adjudications  elsewhere.  There 
are  reasons,  however,  founded  upon  our  system  of  prac- 
tice, which  would  warrant  us  in  so  holding.  The  powers 
(>f  a  court  of  equity  being  vested  in  our  courts  of  law, 
and  equital)le  defenses  being  allowable,  there  is  no  reason 
why,  to  an  action  upon  a  judgment,  the  defendant  should 
not  be  permitted  to  set  up,  by  way  of  defense,  any  mat- 
tei-  which  would  be  ground  of  relief  in  eciuity  against  the 
judgment;  and  it  is  conceded  in  tliose  States  where  the 
record  is  held  conclusive,  that  when  the  judgment  has 
been  obtained  by  fraud,  or  without  bi'inging  tlie  de- 
fendant into  court,  and   the  want  of  jurisdiction  does 


166 


not  appear  upon  the  face  of  the  record,  relief  may  be 
obtained  in  equity. 

Hinchman  v.  Richie  (1849)  '-The  tindino-  of  an  in- 
quisition of  lunacy  may  be  impeached  on  the  ground  of 
fraud,  an<l  in  such  case  it  \x\U  furnish  no  justification 
for  the  arrest  and  confinement  of  the  party," 

l^Uisaii  Conl-cii  hi/  Whipple  ('ooJc,  Jirr  Guardian  versus 
Henry  Kin  (/man  (1827)  ''Morton,  J.,  pronounced  the 
jud,i>nient  of  the  court :  The  letter  of  guardianship  and 
the  bond  for  the  faithful  performance  of  the  trust,  ap- 
proved by  the  judge  of  probate,  were  undoubtedly  prima 
facie  evidence  of  the  appointment  of  the  guardian.  But 
they  v^^ere  not  conclusive.  The  defendant  might  show, 
that  though  in  form  they  were  correct,  yet  in  substance 
they  were  defective  and  void.   *  *  * 

It  further  appears,  that  no  notice  was  given  to  the 
plaiutitf,  of  the  inquisition  of  the  selectmen  or  of  the 
proceedings  before  the  judge  oT  prol)ate,  and  that  there 
was  no  adjudication  that  she  was  ;/o//  compos  mev.iiy 
or  that  a  guardian  be  appointed.  She  was  thus  deprived 
of  the  management  of  her  property,  and,  to  some  extent, 
of  her  liberty,  without  an  opportunity  to  object  or  be 
heard,  and  without  any  formal  judgment.  Those  are  un- 
doubtedly fatal  defects,  and  render  the  whole  proceeding 
unauthorized  and  void.  It  was  so  adjudged  in  Chase  v. 
Hatha wai/  ef  ah,  14  Mass.  K.  222;  Wa'ii  v.  Ma-iivell, 
5  Pick.  217;  and  Hatha  way  v.  Clarl-,  in  id.  490.  And 
in  the  last  case,  it  was  holden,  that  the  healing  influence 
of  time,  after  a  lapse  of  thirty  years,  could  not  cure  the 
infirmity. 

The  appointment  of  the  guardian  being  a  nullity,  it 
cannot  authorize  him  to  do  any  act  which  would  bind 
his  ward.     Even  an  executive  officer,  to  whom  the  guar- 


167 


dian  was  likeued  in  the  argnnient,  cannot  justify  un(l<!r 
a  void  precept.  And  althouiili  the  letter  of  gnardianshi]) 
produced  by  the  phuntilT  was  suflicieiij  fniiiia  facie,  }ot 
we  can  discover  no.  principle  by  which  the  defendant 
should  be  precluded  from  showing:  its  invalidity.  '"  *  *  '' 
Judgment  of  Court  of  Common  Pleas  affirmed. 

United  i< fates,  Appt.,  v.  Samuel  R.  Throckmor- 
ton ct  a  J..  98  U.  S.,  61  (October  Term,  1878).  (kSci^ 
S.  C,  8  Otto.,  61-71,  Trial  Brief,  pp.  190-191.) 

Mr.  Justice  Miller  said : 

"There  is  no  question  of  the  general  doctrine 
that  fraud  vitiates  the  most  solemn  contracts, 
documents,  and  even  judgments.     *     *     * 

''In  cases  where,  by  reason  of  some  thing  done 
by  the  successful  party  to  a  suit,  there  was,  in 
fact,  no  adversary  trial  or  decision  of  the  issue 
in  the  case.  Where  the  unsuccessful  party  has 
been  prevented  from  exhibiting  fully  his  case, 
by  fi'aud  or  deception  practiced  on  him  by  his 
opponent,  as  by  keeping  him  away  from  Court,  a 
false  promise  of  a  compromise;  or  where  the  de- 
fendant never  had  knowledge  of  the  suit,  being- 
kept  in  ignorance  by  the  acts  of  the  plaintiff; 
*  *  *  these,  and  similar  cases  which  show 
that  there  has  never  been  a  real  contest  in  the 
trial  or  hearing  of  the  case,  are  reasons  for  which 
a  new  suit  may  be  sustained  to  set  aside  and 
annul  the  former  judgment  or  decree  and  open 
the  case  for  a  new  and  a  fair  hearing. 

"In  all  these  cases  and  many  others  which  Imve 
been  examined,  relief  has  been  granted,  on  tlie 
ground   that,   by   some   fi-aud    practiced   directly 


168 


upon  the  party  seeking  relief  against  the  judg- 
ment or  decree,  that  party  has  been  prevented 
from  presenting  all  of  his  case  to  the  Court. 

"On  the  other  hand,  the  doctrine  is  equally 
well  settled  that  the  Court  will  not  set  aside  a 
judgment  because  it  was  founded  on  a  fraudu- 
lent instrument,  or  perjured  evidence,  or  for  any 
matter  which  was  actually  presented  and  consid- 
ered in  the  judgment  assailed. 

"Mr.  Wells,  in  his  very  useful  work  on  res 
adjudicata,  says,  Section  499:  'Fraud  vitiates 
everything,  and  a  judgment  equally  witli  a  con- 
tract; that  is,  a  judgment  obtained  directly  by 
fraud.'     *     *     * 

"The  principle  and  tlie  distinction  liere  taken 
was  laid  down  as  long  ago  as  the  year  1702,  by 
the  Lord  Keeper  in  the  High  Court  of  Chancery, 
in  the  case  of  Torei/  v.  Yonn(f,  Prec.  in  Ch.,  193. 

"This  was  a  bill  in  chancery  brought  by  an  un- 
successful party  to  a  suit  at  law,  for  a  new  trial, 
which  was  at  that  time  a  very  common  mode  of 
obtaining  a  new  trial.  One  of  the  grounds  of  the 
bill  was,  that  complainant  had  discovered  since 
the  trial  was  had  that  the  principal  witness 
against  him  was  a  partner  in  interest  with  the 
otliei'  side.  The  Lord  Keeper  said :  'New  mat- 
ter may  in  some  cases  be  ground  for  relief;  but 
it  must  not  be  what  Avas  tried  before ;  nor,  when 
it  consists  in  swearing  only,  will  I  ever  grant  a 
new  trial,  unless  it  appears  by  deed,  or  writing, 
or  that  a  witness,  on  whose  testimony  the  ver- 
dict was  given,  were  convict  of  perjury  or  the 
jury  attainted.'  " 

Dick  E.  ArroiDsmifh,  Appt.   v.   Edward  H.   Gleason 


1G9 


et  a  I.  October  Tenii,  1888.     129  L'.  S.  86  (see  S.  C.  Re- 
porter's ed.  86-101.) 

Mr.  Justice  Harlan  said:  "BiU  whether  that  be  so 
or  not,  it  is  difficult  to  perceive  why  the  circuit  court 
is  not  bound  to  ii,ive  relief  according  to  the  recognized 
rules  of  equity,  as  administered  in  the  Courts  of  the 
United  States,  the  plaintiff  being  a  citizen  of  Nevada, 
the  defendants  citizens  of  Ohio,  and  the  value  of  the 
matter  in  dispute,  exclusive  of  interest  and  costs,  be- 
ing in  excess  of  the  amount  required  for  the  original 
jurisdiction  of  such  courts.  *  *  *  g^t  this  court, 
observing  that  the  constitutional  right  of  the  citizen 
of  one  State  to  sue  a  citizen  of  another  State  in  the 
courts  of  the  United  States,  instead  of  resorting  to  a 
State  tribunal,  would  be  worth  nothing,  if  the  court 
in  which  the  suit  is  instituted  could  not  proceed  to  judg- 
ment and  afford  a  suitable  measure  of  redress,  *  *  * 
We  have  repeatedly  held  that  the  jurisdiction  of  the 
Courts  of  the  United  vStatt's,  over  contrc^versies  between 
citizens  of  different  States,  can  not  be  impaired  bv  the 
laws  of  the  States  which  prescribe  the  modes  of  redress 
in  their  courts,  or  which  regulate  the  distribution  of 
their  judicial  power.  If  legal  remedies  are  sometimes 
modified  to  suit  the  changes  in  the  laws  of  the  States 
and  the  practice  of  their  courts,  it  is  not  so  with  equit- 
able. The  equity  jurisdiction  conferred  on  the  federal 
courts  is  the  same  as  that  the  High  Court  of  Chancery 
in  England  possesses,  is  subject  to  neither  limitation 
nor  restraint  by  State  legislation,  and  is  uniform 
throughout  the  different  States  of  the  Union.     *     *     * 

As  said  in  Barrow  v.  Hunton,  99  U.  S.  SO,  85  ( 25 :  407, 
408),  the  character  of  the  case  is  always  open  to  ex- 
amination, 'for  the  purpose  of  determining  whether, 
ratione  maieriae  the  courts  of  the  United  States  are  in- 


170 


competent  to  take  jnrisdictiou  thereof.  State  rules  on 
the  subject  can  not  deprive  them  of  it.'     *     *     * 

Tlie  most  solemn  transactions  and  judgments  may  at 
the  instance  of  the  parties,  be  set  aside  or  rendered  in- 
operative for  fraud.  *  *  *  It  is  generally  parties 
that  are  the  victims  of  fraud.  The  court  of  chancery 
is  always  open  to  hear  complaints  against  it,  whether 
committed  in  pais  or  in  or  by  means  of  judicial  proceed- 
ings. In  such  cases  the  court  does  not  act  as  a  court 
of  review,  nor  does  it  inquire  into  any  irregularities  or 
errors  or  proceeding  in  another  court ;  but  it  will  scruti- 
nize the  conduct  of  the  parties  and  if  it  finds  that  they 
have  been  guilty  of  fraud  in  obtaining  a  judgment  or 
decree,  it  will  deprive  them  of  the  l)eneflt  of  it  and  of 
any  inequitable  advantage  which  they  have  derived 
under  it"  *  *  *  citing  Story,  Eq.  Jur.  §  §  1570, 
1573;  Kerr,  Fraud  &  M.  352,  353;  Gaines  v.  Fuentes, 
92  U.  S.  10  (23 :  524)  ;  and  Barrow  v.  Hunton,  99  U.  S. 
80  (25:107).  So,  in  RciyuJ  v.  Wood,  1  Johns.  Ch.  402 
406. 

''Relief  is  to  be  obtained  not  only  against  writings, 
deeds  and  the  most  solemn  assurances,  but  against  judg- 
ments and  decrees,  if  obtained  by  fraud  and  imposition." 
To  the  same  effect  is  Boircn  v.  Eruns,  2  H.  L.  ('as.  257, 
281 :  "If  a  case  of  fraud  be  established  equity  will  set 
aside  all  transactions  founded  upon  it,  by  whatever  ma- 
chinery they  may  have  been  (effected,  and  notwitlistand- 
ing  any  contrivances  by  which  it  may  have  been  at- 
tempted to  protect  them.  It  is  immaterial,  therefore, 
whether  such  machinery  and  contrivances  consisted  of 
a  decree  of  equity,  and  a  purchase  under  it,  or  a  judg- 
ment at  law  or  of  other  transactions  between  the  acts 
in  the  fraud."  See  also  Colclouf/h  v.  Bolger,  4  Dow, 
P.  C.  54,  64 ;  Barnesly  v.  Powell,  1  Ves.  Sr.  120,  284,  289 ; 


171 

Richniond  v.  Taylenr,  1  V.  Wins.  T.'iG ;  Niles  v.  Anderson, 
5  How.   (Miss.)  3(55,  3SG. 

These  principles  control  the  present  case  which,  al- 
though involvini;  rii>hts  arisinj>-  under  judicial  proceed- 
in<is  in  another  jurisdiction,  is  an  original,  independent 
suit  for  equita))le  relief  between  the  parties ;  such  relief 
being-  grounded  on  a  new  state  of  facts,  disclosing  not 
only  imposition  upon  a  court  of  justice  in  procuring 
from  it  authority  to  sell  an  infant's  lands  when  there 
w^as  no  necessit}'  therefor,  but  actual  fraud  in  the  exer- 
cise, from  time  to  time,  of  the  authority  so  obtained.  As 
this  case  is  within  the  equity  jurisdiction  of  the  circuit 
court,  as  defined  by  the  Constitution  and  laws  of  the 
United  States,  that  court  may,  by  its  decree,  lay  hold 
of  the  parties,  and  compel  them  to  do  what  according  to 
the  principles  of  equity  they  ought  to  do,  thereby  se- 
curing and  establishing  the  rights  of  which  the  plain- 
tiff is  ialleged  to  have  been  deprived  by  fraud  and  collu- 
sion.'' 

>S'(/rc//i  E.  Marshall,  Pljf.  in  Err.  v.  He^irij  B.  Holmes, 
Sheriff,  et  al,  141  U.  S.  589  (See  S.  C.  Reporter's  ed. 
589-601.) 

Mr.  Justice  Harlan  said :  ''While,  as  a  general  rule, 
a  defense  can  not  be  set  up  in  equity  which  has  been 
fully  and  fairly  tried  at  law,  and  although  in  view  of 
the  large  powers  now  exercised  by  courts  of  law  over 
their  judgments,  a  court  of  the  United  States,  sitting  in 
equity,  will  not  assume  to  control  such  judgments  for 
the  purpose  simply  of  giving  a  new  trial,  it  is  the  settled 
doctrine  that  'any  fact  which  clearly  proves  it  to  be 
against  conscience  to  execute  a  judgment,  and  of  which 
the  injured  party  could  not  have  availed  himself  in  a 
court  of  law,  or  of  which  he  might  have  availed  him- 


172 


self  at  law,  but  was  prevented  by  fraud  or  accident,  un- 
mixed with  any  fault  or  negligence  in  himself  or  his 
agents,  will  justify  an  application  to  a  court  of  chan- 
cery.' Marine  Ins.  Co.  of  Alexandria  v.  Hodgson^  11 
U.  S.  7  Cranch,  332,  336  (3:  362,  363)  ;  Hendrickson  v. 
Hinckley,  58  U.  S.  17  How.  443,  445  (15:  123,  124); 
Crim  V.  Uandley,  94  U.  kS.  652,  653  (24:  216)  ;  Metcalf 
V.  WlUldin^.  104  Y.  S.  93,  9r,  (26:665,  666);  Emhrey 
V.  Palmer,  107  U.  S.  3,  11  (27:  346,  349)  ;  Knox  County 
V.  Harshman,  133  U.  S.  152,  154  (33 :  586,  587)  ;  2  Story, 
Eq.  Jur.  §  §  887,  1574 ;  Floyd  v.  Jayne,  6  Johns  Ch.  479, 
482,  2  L.  ed.  190,  192.  See  also  United  States  v.  Throck- 
morton, 98  U.  S.  61,  65  (25:  93,  95.)"     *     *     * 

Is  it  true  that  a  circuit  court  of  the  United  States,  in 
the  exercise  of  its  equity  powers,  and  Avhere  diverse 
citizenship  gives  jurisdiction  over  the  parties,  may  not, 
in  any  case,  deprive  a  party  of  the  benefit  of  a  judgment 
fraudulently  obtained  l)y  him  in  a  State  court,  the 
circumstances  being  such  as  would  authorize  relief  by 
the  federal  court,  if  the  judgment  had  been  rendered 
by  it  and  not  by  a  State  court? 

A  leading  case  upon  this  subject  is  Barroiv  v.  Hunton, 
99  U.  S.  80,  82  (25:  407,  408).  That  was  a  suit  in  one 
of  the  courts  of  Louisiana  to  annul  a  judgment  ren- 
dered in  a  court  of  that  State  upon  the  ground  that  it 
was  founded  upon  a  default  taken,  without  lawful  serv- 
ice of  the  petition  and  a  citation,  and  because,  prior  to 
the  judgment,  the  party  seeking  to  have  it  set  aside  had 
been  adjudged  a  bankrupt.  The  case  was  removed  to 
the  Circuit  Court  of  the  United  States,  and  was  subse- 
quently remanded  to  the  State  court.  The  court  held 
that  the  jurisdiction  of  the  circuit  court  depended  upon 
the  question  whether  the  action  to  annul  the  judgment 
was  or  was  not  in  its  nature  a  separate  suit,  or  only  a 
supplementary  proceeding  so  connected  with  the  origi- 


17;) 


nal  suit  as  to  form  an  incident  to  it,  and  to  be  sul)stan- 
tially  a  continuation  of  it.     It  said :    ''If  the  proceeding- 
is  merely  tantamount  to  the  common  law  practice  of 
moving  to  set  aside  a  judgment  for  irregularity,  or  to 
a  writ  of  error,  or  to  a  bill  of  review  or  an  appeal,  it 
would   belong  to   the  latter  category,   and   the   United 
States  Courts  could  not  properly  entertain  jurisdiction 
of  the  case.    Otherwise,  the  circuit  courts  of  the  United 
States  would  become  invested  with  power  to  control  the 
proceedings  in  the  State  courts,  or  would  have  appellate 
jurisdiction  over  them  in  all  cases  where  the  parties 
are  citizens  of  different  States.     Such  a  result  would  be 
totally  inadmissible.    On  the  other  hand,  if  the  proceed- 
ings   are  tantamount  to  a  bill  in  equity  to  set  aside  a 
decree  for  fraud   in   the  obtaining  thereof,  then  they 
constitute  an  original  and  independent  proceeding,  and 
according  to  the  doctrine  laid  down  in  Gaines  \.  Fuentes, 
92  V.  S.  10  (23 :  524 ),  the  case  might  be  within  the  cog- 
nizance of  the  federal  courts.     The  distinction  between 
the  two  classes  of  cases  may  be  somewhat  nice,  but  it 
mav  be  affirmed  to  exist.     In  the  one  class,  there  would 
be  a  mere  revision  of  errors  and  irregularities,  or  of  the 
leiialitv  and  correctness  of  the  judgments  and  decrees 
of  the  State  courts ;  and  in  the  other  class,  the  investi- 
gation of  a  new  case,  arising  upon  new  facts,  although 
having  relation  to  the  validity  of  an  actual  judgment 
or  decree,  or  of  the  party's  right  to  claim  any  benefit 
by  reason  thereof." 

Referring  to  the  provisions  of  the  Louisiana  Code  of 
Practice  authorizing  an  action  to  annul  a  judgment 
obtained  through  fraud,  bribery,  forgery  of  documents, 
etc.,  the  court  said  that  it  was  disposed  to  allow  the 
fact  that,  by  the  local  law,  an  action  of  nullity  could 
only  be  brought  in  the  court  rendering  the  judgment,  or 
in  the  court  to  which  the  judgment  was  taken  by  appeal. 


174 


to  operate  so  far  as  to  make  it  an  invariable  criterion  of 
the  want  of  jurisdiction  in  tlie  courts  of  the  United 
States.  '^^If,''  the  court  said,  "the  legislatures  could,  by  in- 
vesting certain  courts  with  exclusive  jurisdiction  over 
certain  subjects,  deprive  the  federal  courts  of  all  jurisdic- 
tion, they  might  seriously  interfere  with  the  right  of  the 
citizen  to  resort  to  those  courts.  The  character  of  the 
cases  themselves  is  always  open  to  examination  for  the 
purpose  of  determining  whether,  ratione  materiae^  the 
courts  of  the  United  States  are  competent  to  take  juris- 
diction thereof.  State  rules  on  the  subject  can  not  de- 
prive them  of  it."  As  that  proceeding  was  equivalent 
in  common  law  practice  to  a  motion  to  set  aside  the 
judgment  for  irregularity,  or  to  a  writ  of  error  coram 
vohis,  and  as  the  cause  of  nullity  related  to  form  only, 
the  case  was  held  not  to  be  cognizable  in  the  courts  of 
the  United  States. 

The  rules  laid  down  in  Barrow  V.  Huntoyi  were  ap- 
plied in  Johnson  v.  Waters,  111  U.  S.  640,  667  (28:  547, 
556)  ;  and  Arrotvsmith  v.  Gleason,  129  U.  S.  86,  101  (32: 
630,  635).  In  Johnson  v.  Waters,  this  court  upheld  the 
jurisdiction  of  the  Circuit  Court  of  the  United  States, 
by  a  decree  in  an  original  suit,  to  deprive  parties  of  the 
benefit  of  certain  fraudulent  sales  made  under  the  orders 
of  a  probate  court  of  Louisiana,  which  court,  by  the  law 
of  that  State,  had  exclusive  jurisdiction  of  the  subject- 
matter  of  the  proceedings  out  of  which  the  sales  arose. 
After  observing  that  the  court  of  chancery  is  always 
open  to  hear  complaints  against  fraud,  whether  commit- 
ted in  pais  or  in  or  by  means  of  judicial  proceedings,  the 
court  said:  "In  such  cases,  the  court  does  not  act  as  a 
court  of  review,  nor  does  it  inquire  into  any  irregulari- 
ties or  errors  of  proceeding  in  another  court ;  but  it  will 
scrutinize  the  conduct  of  the  parties,  and,  if  it  finds 
they  have  been  guilty  of  fraud,  in  obtaining  a  judgment 


175 

or  decree,  it  will  deprive  them  of  the  benefit  of  it,  and 
of  any  inequitable  advantage  which  they  have  derived 
under  it."     In  Arroiosmith  V.   (ilea son  the  grounds  of 
the  jurisdiction   of   the   Circuit   Court   of   the   United 
States  to  entertain  an  original  suit — the  parties  being- 
citizens  of  different  States — to  set  aside  a  sale  of  lands 
fraudulently  made  by  the  guardian  of  an  infant,  under 
authority  derived  from  a  probate  court,  are  thus  stated :, 
''These  principles  control  the  present  case,  which,  al- 
though involving  rights  arising  under  judicial  proceed- 
ings in  another  jurisdiction,  is  an  original,  independent 
suit  for  equitable  relief  between  the  parties;  such  re- 
lief being  grounded  upon  a  new  state  of  facts,  disclos- 
ing not  only  imposition  upon  a  court  of  justice  in  pro- 
curing from  it  authority  to  sell  an  infant's  lands  when 
there  was  no  necessity  therefor,  but  actual  fraud  in  the 
exercise,  from  time  to  time,  of  the  authority  so  obtained. 
As  the  case  is  within  the  equity  jurisdiction  of  the  cir- 
cuit court,  as  defined  by  the  Constitution  and  laws  of 
the  United  States,  that  court  may,  by  its  decree,  lay 
hold  of  the  parties  and  compel  them  to  do  what,  accord- 
ing to  the  principles  of  equity,  they  ought  to  do,  thereby 
securing  and  establishing  the  rights  of  which  the  plain- 
tiff is  alleged  to  have  been  deprived  by  fraud  and  collu- 
sion." 

Point  9.  The  said  Commitment  Proceedings  were 
void  in  toto  for  they  were  without  due  process  of  law 
and  therefore  unconstitutional  for  the  following  reason. 

There  was  lack  of  notice. 

The  said  ( N)mmitment  Papers  ( Transcript  of  Record, 
p.  113,  Fols.  222-223)  show  that  plaintiff,  John 
Armstrong  Chaloner,  a  citizen  of  Virginia,  was 
committed  to  Bloomingdale  Insane  Asylum  at  White 
Plains,   New  York,  by  an   order  entered   March   10th, 


176 


1897,  by  Judge  H.  A.  Gildersleeve  of  the  Supreme  Court 
of  that  State,  upon  the  petition  of  Winthrop  A.  Chanler, 
and  Lewis  S.  Chanler,  brothers  of  plaintiff,  and  Arthur 
A.  Carey,  a  cousin  of  plaintiff,  and  upon  the  certificate 
of  M.  Allen  Starr  and  another,  Statutory  Medical-Exam- 
iners-in-Lunacy ;  and  that  personal  service  of  process 
upon  plaintiff  was  dispensed  with  by  said  Judge  on  the 
alleged  ground  that  plaintiff  was  dangerous.  The  said 
proceedings  under  which  plaintiff  was  so  committed 
were  had  without  any  notice  to  plaintiff  whatsover,  such 
notice  having  been  specifically  dispensed  with  by  order 
of  said  Judge.  (  See  Transcript  of  Record,  p.  113,  said 
Commitment  Papers,  lines  185-192. )  Said  Commitment 
was  not  temporary,  but  indeterminate  and  permanent 
as  to  time  and  was  stated  to  be  after  "a  hearing  duly 
had."  (See  p.  113,  said  Commitment  Papers,  line  345.) 
Said  order  was  that  plaintiff  be  "adjudged  insane  and 
that  he  be  committed  to  'Bloomingdale'  Insane  Asylum 
at  White  Plains,  New  York,  an  institution  for  the  cus- 
tody and  treatment  of  the  insane."  (See  Transcript  of 
Record,  p.  113,  Commitment  Papers,  lines  349-351.) 

Plaintiff  had  no  notice  of  said  application  either  per- 
sonal, or  by  substituted  service  on  some  person  in  plain- 
tiff's behalf;  and  there  was  no  hearing  at  which  plain- 
tiff Avas  either  present,  could  be  present,  or  was  repre- 
sented by  any  other  person.  Plaintiff  Avas  finally  ad- 
judged insane  and  committed  to  perpetual  imprison- 
ment, without  notice  or  hearing,  and  therefore  without 
due  process  of  law. 

Said  Commitment  Being,  on  Its  Face,  a  Permanent 
Order  and  Without  Notice,  Is,  for  Want  of  Due 
Process  of  Law,  Void. 

It  is  a  true  principle  of  law^  and  justice  that  a  per- 


177 


son  cau  not  be  deprived  of  his  liberty,  or  his  property, 
without  notice  to  him  and  opportunity  to  be  heard  in 
his  own  behalf.  This  proposition  has  been  repeatedly 
expressed  in  the  highest  courts  in  many  of  the  States. 
In  many  of  them  it  has  been  specifically  applied  to 
cases  of  insanity  upon  de  lunatico  inquirendo  proceed- 
ings. The  above  proposition  is  sustained  by  the  follow- 
ing excerpts  from  cases  ranging  from  1817  to  1902,  in 
date,  fifteen  of  which  from  their-  being  leading  cases, 
are  given  in  ecotenso. 

In  Hatha icaij  v.  Clark,  5  Pick.  (Mass.),  190  (decided 
in  1827 ) ,  the  question  of  the  necessity  of  notice  arose  in- 
directly, but  was  directly  decided.  A  writ  of  error 
was  brought  to  reverse  a  judgment,  on  the  ground  that 
the  original  defendant,  at  the  time  of  the  service  of  the 
writ  upon  him  and  of  rendition  of  the  judgment,  was 
under  guardianship  as  a  person  7}on  compos  mentis, 
and  that  no  notice  of  the  suit  was  ever  given  the  guar- 
dian (corresponding  to  the  Committee,  in  New  York 
State).  Issue  Avas  raised  as  to  the  existence  of  the 
guardianship;  and  to  prove  it,  the  records  of  the  Pro- 
bate Courts  were  produced,  showing  the  appointment 
of  a  guardian,  but  containing  no  adjudication  that  de- 
fendant was  nou  compos  and  no  affirmative  evidence 
that  he  ever  had  notice  of  the  inquisition,  or  of  the 
proceedings  upon  the  return.  Held,  per  Morton,  J.,  the 
party  alleging  the  existence  of  the  guardianship  had 
failed  to  prove  it,  because:  (1)  By  statute,  notice  to 
the  person  to  be  affected  by  the  inquisition,  and  of  the 
adjudication,  is  essential  to  the  validity  of  the  proceed- 
ings in  the  Probate  Courts. 

(2)  In  the  absence  of  such  notice,  the  decree  is  ab- 
solutely void  (citing  Chase  v.  Hathairaij,  14  Mass.  222). 

(3)  Notice  was  not  shown  by  the  record,  and  would 
not  be  presumed. 

(12) 


178 

Buicliins  v.  Johnson,  12  Conn.  376  (1837)  was  an 
action  brought  by  the  conservator  (the  term  then  used 
to  designate  the  coniniittee)  of  a  lunatic.  One  of  the 
facts  to  be  proved  by  plaintiff  was  his  appointment  as 
conservator.  On  appeal  from  a  judgment  in  his  favor, 
it  was  held  (per  Williams,  Ch.  J.),  that  because  the 
record  of  his  appointment  failed  to  show  that  notice 
of  the  application  was  ever  given  to  the  alleged  lunatic, 
the  judgment  should  be  reversed,  notice  being  essential 
to  the  validity  of  so  important  a  proceeding  both  by 
"the  fundamental  principles  of  justice"  (citing  Chase 
v.  Hathaway,  14  Mass.  224)  and  by  the  statute  of  Con- 
necticut. "A  requirement  so  salutary  should  be  en- 
forced; and,  until  such  notice  is  given,  the  court  has 
no  more  right  to  make  the  appointment,  no  more  juris- 
diction in  the  case,  than  any  other  tribunal.     *     *     * 

"The  case  presented  to  us  is  that  of  a  court,  to  whom 
an  authority  is  delegated  upon  certain  terms  and  condi- 
tions, having  proceeded  to  act  under  that  authority 
w^ithout  having  seen  that  those  prerequisite  conditions 
were  complied  with :  in  which  cases  we  have  held  such 
proceeding  void." 

(Action  was  in  simple  Assumpsit.) 

In  Bonn]  of  Supcrrisors  v.  Budlonf/,  51  Barb.  493 
(1808)  defendant  was  sued  for  the  expense  of  main- 
taining his  wife  at  the  county  insane  asylum.  The  ques- 
tion was  presented  (both  by  objection  and  exception 
to  the  introduction  in  evidence  of  a  certificate  of  the 
County  Judge,  and  by  offer  to  prove  and  exception  to 
the  exclusion  of  evidence,  that  the  facts  stated  in  said 
certificate  as  to  the  insanity  of  the  wife  were  untrue), 
whether  the  defendant,  who  was  not  a  party  to  the  pro- 
ceeding to  adjudge  his  wife  a  lunatic,  was  concluded 
therel)v  and   bv  the  ccn'tificate  of    the    result    thereof. 


179 


Held,  per  E.  D.  Smith,  J.,  the  husband  was  not  so  bound ; 
and  the  admission  in  evidence  of  the  certificate,  and  the 
exclusion  of  evidence  of  the  sanity  of  the  wife,  were 
error,  requiring  reversal.  "The  Statute,  which  author- 
ized the  certificate,  does  not  declare  what  shall  be  the 
force  or  effect  of  such  certificate  as  evidence,  or  whom 
it  shall  bind;  and  it  must,  therefore,  stand  upon  the 
same  basis  with  all  other  judgments  or  adjudications. 
It  must  bind  those  who  were  parties  and  privies  to  the 
proceeding,  and  had  an  opportunity  to  litigate  the 
questions  involved  in  such  investigation  and  adjudica- 
tion. No  one  else  can  be  bound  by  this  certificate.  It 
is  a  fundamental  rule  of  law  and  of  common  justice 
that  no  one  shall  be  concluded  by  a  legal  judgment,  de- 
cision or  adjudication  had  or  made  in  any  suit  or  pro- 
ceeding to  or  in  which  he  was  not  a  party  or  privy,  and 
of  which  he  had  no  notice,  or  in  respect  to  which  he 
had  no  opportunity  to  defend  himself,  or  to  litigate 
the  question  involved,  or  upon  which  his  liability  de- 
pended. The  jurisdiction  of  all  courts  and  officers  exer- 
cising judicial  functions  is  open  to  investigation,  ques- 
tion and  inquiry,  whenever  their  proceedings  are  set 
up  or  sought  to  be  enforced;  and  when  there  is  no 
jurisdiction,  such  proceedings  are  absolutely  void.  If 
this  certificate,  then,  was  prima  facie  evidence  of  the 
facts  it  recites  and  afftrms,  or  finds,  it  could  not  be  con- 
clusive on  the  defendant  and  he  was  clearly  entitled 
to  disprove  the  facts  alleged  or  stated  therein,  upon 
which  the  jurisdiction  of  the  judge  depended." 

Eslara  v.  Lepetre,  21  Ala.  504  (1852)  was  a  suit  to 
foreclose  mortgages,  one  of  which  was  executed  by  the 
mortgagor  and  his  wife's  guardian  in  lunacy.  She 
was  not  made  a  party,  though  her  guardians  were.  It 
appeared  that  they  liad  been  appointed  on  i^etition  of 


180 


the  husband,  allegiiif^  his  wife's  insanity,  etc.,  but  there 
was  no  issuance  of  a  writ  de  lunatico  inquirendo  and 
no  finding  of  a  jury  therein.  Held,  per  Ligon,  J.,  ap- 
pointment void,  and  objection  that  wife  was  not  a  party 
to  the  foreclosure  suit  well  taken.  "Without  the  is- 
suance of  this  writ,  and  the  finding  of  a  jury,  the  County 
Court  Judge  had  no  power  to  declare  her  a  lunatic  or 
to  appoint  a  guardian  for  her.  These  proceedings  are 
indispensable  to  give  the  County  Court  jurisdiction  to 
make  the  appointment;  and  as  they  were  not  had  and 
as  thfit  Court  is  one  of  limited  jurisdiction,  the  pro- 
ceedings upon  the  appointment  of  guardians  are  coram 
non  judice  and  void.  Such  being  the  case  they  may 
be  impeached  in  any  Court  in  a  collateral  proceeding 
in  which  a  party  seeks  a  benefit  under  them.  *  *  * 
Neither  does  the  record  show  that  she  had  any  notice 
whatever  of  the  proceedings.  They  were  ew  parte,  and 
are  consequently  null  and  void." 

Molton  V.  Henderson,  02  Ala.  426  (1878)  was  an 
action  brought  bv  the  gTiardian  of  a  lunatic,  the  son 
of  one  Thos.  Molton,  to  declare  lands  in  defendant's 
possession  subject  to  the  trusts  created  by  the  will  of 
the  lunatic's  father.  The  guardian  had  been  appointed 
without  notice  to  the  lunatic  and  had  brought  pro- 
ceedings to  have  the  land  in  question  sold,  as  beneficial 
to  the  lunatic.  The  sale  took  place,  and  defendant  later 
purchased  from  grantees  of  the  purchaser.  Plaintiff 
now  claims  the  sale  to  be  void,  alleging  the  jurisdictional 
defect  in  the  appointment  of  the  guardian,  invalidat- 
ing the  proceedings  for  the  sale. 

Held,  the  want  of  notice  rendered  the  inquisition 
of  lunacy  void.  But  the  defendant  having  had  posses- 
sion adverselv  for  the  statutorv  time,  held,  entitled  to 
retain  it. 


181 


Mulligan  v.  Smith,  59  Cal.  200.  Holds  in  reference 
to  notice  in  str-eet  opening  proceedings.  In  absence 
of  notice,  not  precluded  from  attaching  sufftciency  of 
petition. 

Hcij  Sinf/  leck  v.  Anderson,  57  Cal.  251.  Held,  in  re 
seizure  of  fishing  nets :  Confiscations  without  a  judicial 
hearing  and  judgment,  after  due  notice,  are  void,  as  not 
due  process  of  law. 

McGee  v.  Hai/es,  127  Cal.  336.  I  under  Code  Civ. 
Proc,  1763,  providing  that,  on  the  filing  of  a  petition 
for  the  appointment  of  a  guardian  for  an  incompetent 
person,  notice  must  be  given  to  such  person  of  time  and 
place  of  hearing  of  at  least  5  days  and  "such  person  if 
able  to  attend  must  be  produced,"  the  personal  appear- 
ance of  such  person  on  the  hearing  and  his  request  that 
the  petition  be  granted,  do  not  cure  fatal  defects  in  the 
notice  of  the  hearing  served  on  him. 

Board  of  Education  v.  Bakerwell,  122  111.,  348,  Re 
taking  of  ])roperty  for  normal  school.  "As  said  in 
Westervelt  v.  Gregg,  2  Kern  209 :  'Due  process  of 
law  undoubtedly  means  in  the  due  course  of  legal  pro- 
ceedings according  to  those  rules  and  forms  which  have 
been  established  for  the  protection  of  private  rights. 
Such  an  act  as  the  legislature  may,  in  an  uncontrolled 
exercise  of  its  power,  think  fit  to  pass  is  in  no  sense 
the  process  of  law  designated  by  the  Constitution. 


}  ?j 


Susan    Conhey,    hy    Whipple    Cook,    her    Guardian 
VERSUS  Henry  Kingman,  24  Pick.  115. 

Assumpsit  on  a  promissory  note  as  follows: 

"Pelham,   October  27th,   1827.     For  value   received 


182 


of  Whipple  Cook,  guardian  of  Susan  Conkey,  a  dis- 
tracted person,  of  Pelham,  I  promise  to  pay  him  the  sum 
of  |7.67  annually,  that  is  to  say,  at  the  expiration  of 
each  year  from  the  above  date,  for  and  during  the 
natural  life  of  said  Susan  Conkey.  Witness  my  hand. 
Henry  Kingman." 

The  plaintiff  sued  l>y  Cook  as  liei-  guardian,  and  the 
defendant  pleaded  in  abatement,  that  at  the  time  of 
suing  out  the  writ  the  plaintiff  was  not  under  the  guar- 
dianship of  Cook;  and  issue  was  joined  upon  this  plea. 

At  the  trial  in  the  Comuion  Ple^is,  before  Williams, 
J.,  the  plaintiff  produced  the  following  evidence  (to  the 
competene\  of  all  of  which  the  defendant  olijected )  viz: 
a  letter  of  guardianship,  dated  Septend)er  4th,  1827, 
from  the  judge  of  probate,  appointing  Cook  the  guar- 
dian of  the  plaintiff  as  a  person  non  compos  mentis, 
and  a  bond  (h\\j  executed  and  approved  for  the  faith- 
ful perforuumce  by  Cook  of  his  duties  as  guardian. 
The  plaintiff'  further  proved,  that  afterwards  Cook, 
claiming  a  right  to  act  in  behalf  of  the  plaintiff  by  virtue 
of  the  letter  of  guardiauship,  demanded  of  one  Fitts,  in 
behalf  of  the  plaintiff,  that  he  should  set  off  her  dower  in 
a  parcel  of  land  of  which  she  was  dowable,  and  which 
her  husband  had  conveyed  to  the  defendant,  and  the  de- 
fendant had  conveyed  with  warranty  to  Fitts;  that  upon 
this  a  negotiation  was  had,  which  i-esulted  in  an  agree- 
ment by  the  defendant  to  i»ay  Cook  st)  mucli  money  an- 
nually as  was  e(|uivalent  to  the  value  of  the  dower,  to  be 
determined  by  arbitrators;  and  that  in  consideration 
thereof  Cook  agreed  not  to  procure  the  dower  to  be  set 
oft',  that  arbitrators,  mutually  chosen,  then  awarded 
that  the  defendant  should  pay  the  sum  of  $7.67  annually ; 
that  (\)ok,  as  guardian,  executed  a  writing  purporting 
to  be  a  lease  of  the  doAver  during  the  life  of  the  plaintiff, 
and  the  defendant  thereupon  gave  the  note  above  recited* 


183 


and  that  ou  the  third  of  Noveiiibei*,  1828,  the  defeiidaut 
paid  oue  instalment  of  the  note. 

To  meet  this  evidence,  the  defemhmt  i>roved  (the  plain- 
tiff objecting  to  the  introduction  of  the  evidence),  that 
the  application  hj  tlie  selectmen  of  Pelham  for  a  com- 
mission contained  the  name  of  Sarah  Conkey,  and  not 
Susan  Conkey;  that  the  ordei-  of  in«iuisiti(m  contained  the 
same  name;  and  that  the  name  of  Susan  Conkey  first  oc- 
curs in  tlie  return  of  the  commission.  Tlie  defendant 
also  proved  that  previous  to  the  appointment  of  Cook 
as  guardian  no  notice  was  issue<l  l)y  the  judge  of  pro- 
bate to  the  plaintiff  to  appear  and  show  cause  why  a 
guardian  should  not  be  appointed,  nor  any  adjudication 
made  that  she  was  non  cornpos  mentis,  or  that  a  guar- 
dian be  appointed. 

The  judge  ruled  that  Cook  was  not  guai-dian  of  the 
plaintiff  for  the  purpose  of  prosecuting  this  action,  and 
by  consent  of  parties  ordered  a  nonsuit.  To  this  ruling 
and  also  to  the  admission  of  the  evidence  offered  by 
defendant  the  plaintitt"  excepted.     "^     *     * 

]Morton,  J.,  pronounced  the  judgment  of  the  court : 
The  letter  of  guardianship  and  the  bond  for  the  faith- 
ful performance  of  the  trust,  approved  by  the  judge  of 
probate,  were  undoubtedly  prima  facie  evidence  of  the 
appointment  of  the  guardian.  But  they  were  n«»t  coii- 
clusiv(\  The  defendant  might  sho\^ ,  that  though  in  form 
tliev  were  correct,  vet  in  substance  thev  were  defective 
and   void.     *     *     * 

It  further  appears  that  no  notice  was  given  to  the 
plaintiff  of  the  inquisition  of  the  selectmen  or  of  the 
proceedings  before  the  judge  of  probate,  and  that  there 
was  no  adjudication  that  she  was  non  compos  mentis 
or  that  a  guardian  be  appointed.  She  was  thus  de- 
prived of  the  management  of  her  property  and,  to  some 


184 


extent,  of  her  liberty,  without  au  opportiuiity  to  ob- 
ject or  be  heard,  aud  witlioiit  any  formal  judgment. 
These  are  undoubtedly  fatal  defects,  and  render  the 
whole  proceeding  unauthorized  and  void.  It  was  so 
adjudged  in  (liasc  v.  Hathawaij,  et  al.,  14  Mass.,  R.  222; 
Wait  v.  Maxwell,  5  Pick.  217;  and  Hathairay  v.  Clark, 
in  id.  490.  And  in  the  last  case  it  was  holden,  that 
the  healing  influence  of  time,  after  a  lapse  of  thirty 
years,  could  not  cure  the  infirmity. 

The  appointment  of  the  guardian  being  a  nullity,  it 
cannot  authorize  him  to  do  any  act  which  ^^'ould  bind 
his  ward.  Eyen  an  executive  officer,  to  whom  the  guar- 
dian was  likened  in  the  argument,  cannot  justify  under 
a  void  precept.  And  although  the  letter  of  guardian- 
ship produced  by  the  plaintiff  wits  sufficient  prima  facie, 
jet  ^^'e  can  discover  no  principle  by  which  the  defendant 
should  l)e  precluded  from  showing  its  invalidity.   *  *   * 

Judgment  of  Court  of  Conimon  Pleas  affirmed. 

Doyle  Petitioner. 

( 16  Rhode  Island,  537. ) 

June,  ISm. 

Per  Curia  hi:  *•  *   * 

It  is  not  enough  to  answer  that  the  persons  are  in- 
sane, since  whether  they  are  insane  is  the  very  (pics- 
tion  which  ouiiht  to  i)e  determined  l)elore  they  are  so 
completely  confined  as  nc^t  any  longer  to  have  power  to 
institute  proceedings  for  their  own  relief,  or  to  be  beard 
and  adduce  evidence  in  their  own  behalf. 

(Ircat  West  Miniufi  Com  pan  ij  v.  Wofxliiia.s  of  Al^Uon 
Mining  Conipanij,  13  Am.  St.  Rep.  204  (December, 
1888),   (12  Colorado  46.) 

Gerry,  J.,  said:  Void  judgment.  Effect  of. — Absence 
of  legal  service  or  authorized  appearance  is  jurisdictional 
and  without  jurisdiction  no  judgment  can  be  entered 
under  which  any  rights  can  be  lost  or  acquired. 


185 


■/iirwdiction  cannot  he  acquired  hi/  the  mere  lev//  of 
an  attachment,  sufficient  to  authorize  the  court  to  deter- 
mine the  (luestion  of  indebtedness,  and  to  condemn  the 
attached  property  to  pay  the  same.  Tliou.oh  an  attach- 
ment is  levied,  jurisdiction  is  not  reijuired  until  service 
of  summons. 

Due  l*roccH8  of  Laic  "  *  *  Xo  person  can  be  preju- 
diced, or  his  rights  of  person  or  property  affected,  with- 
out notice,  actual  or  c(msti'uctive.  Any  proceeding  whicli 
violates  this  principle  is  not  due  process  of  law,  anil  is 
n(>t  according  to  the  law  of  the  land.   *   *   * 

Jndiriai  'Sale.  *  *  *  Ixdlcf  trill  ])<■  (j rait  ted  front  a 
sale  Ixtscd  n/xtu  a  jtidtjiiieitt  entered  witJiout  service  of 
process  upon  or  appearance  on  behalf  of  the  defendant, 
without  imiuiring  as  to  the  merits  of  the  original  claim. 
Although  a  just  cause  of  action  exists  against  the  de- 
fendant, he  must  be  allowed  an  opportunity  to  pay  the 
debt,  or  redeem  the  property  from  sale,  before  his  title 
ther(^to  can  be  divested  by  judicial  proceedings. 

McCiiffif  v.  Hooper,  12  Alabama,  823,  January  Term, 
1848/ 

This  was  an  action  of  detinue,  brought  by  the  plain- 
tiff, to  recover  of  defendant,  certain  slaves.  On  the  trial, 
the  plaintiff  read  in  evidence  a  bill  of  sale,  executed  to 
him  for  the  slaves,  by  George  L.  Patrick,  bearing  the  date 
of  January,  1845.  At  the  date  of  the  instrument,  the 
slaves  were  in  possession  of  Patrick,  and  belong<xl  to 
him.  The  <onsideration,  expressed  in  the  bill  of  sale,  is 
11,200. 

The  defense  was,  that  at  the  day  of  the  execution  of 
the  instrument  Patrick  was  non  compos  mentis;  and  to 
show  this,  the  defendant  offered  in  evidence  the  tran- 
script of  a  record  from  the  orphans'  court  of  St.  Clair, 
from  which  it  appears  that  on  the  first  day  of  January, 


18b 


ap])licati()ii  was  made  to  the  jiuljie  of  the  orpliaiis'  court 
by  ilie  friends  of  Georiie  L.  Patrick  for  au  iiKjiiisition  of 
liiuacv  to  ascertain  if  said  I'n trick  was  not  a  lunatic, 
and  incapable  of  managing  liis  affairs;  but  it  does  nor 
appear  wlio  those  friends  were.  The  judge  of  the  or- 
phans' court  ordered  a  wnt  dc  Innatico  iiiqiiinndo  to  be 
issued  to  the  sheriff  of  the  county,  connnandinji  him  to 
summon  twelve  citizens  of  the  county,  to  make  inquisi- 
tion, if  said  Pati-ick  be  a  lunatic,  and  incapable  of  manao- 
ing  his  affairs.  The  sheriif  summoned  the  jury,  and  on 
the  4th  day  of  January,  1845,  after  being  sworn,  they 
found  that  Patrick  was  incapable  of  transacting  his  busi- 
ness, and  was  liable  to  be  imposed  on  by  any  designing 
person,  and  certified  this  verdict,  under  their  hands  and 
seals.  The  sheriff"  returned  the  writ,  with  this  verdict 
of  the  jury,  to  the  orphans'  court. 

Dargan,  J. :  *  *  '•  The  first  (|uesti(Ui  w<^  ]U-opose  to 
examine,  is,  was  the  record  of  the  orphans'  court  of  St. 
Clair  pui'porting  to  be  an  inipiisition  of  lunac}', 
to  ascertain  if  (leorge  L.  Patrick  was  sane,  oi'  iinii  co'tipof-'. 
htcuHs,  evidence  for  any  purpose? 

These  proceedings  purport  to  be  had  ou  tlie  applica- 
tion of  the  friends  of  Patrick.  The  writ  was  issued,  and 
the  jury  certified  that  he  was  unable  to  transact  busi- 
ness; that  he  was  liable  to  be  imposed  upon  by  design- 
ing ]>ersons;  and  that  he  was  tioii  coiitpos  iiicnfis.  This 
verdict  was  returned  with  the  writ,  and  thereupon,  a 
guardian  was  appointed,  the  defendant  in  error,  to  take 
charge  of  his  property  and  i)erson.  It  does  not  appear 
that  George  L.  Patrick  had  any  notice  whatever  of  the 
time,  and  place,  of  nuikiug  this  in(]uisition;  or  that  the 
jury  saw  him,  or  nuide  any  ap]^lication,  or  effort  to 
see  him.  It  does  not  appear  that  he  had  any  notice  of 
the  application  to  the  court  for  the  writ,  or  that  he 
had  any  notice  of  the  action  of  the  court,  on  the  return 


187 


of  the  writ;  but  the  proceediuiis  wei-e  r./  jHirlr  iuei-<'ly; 
and  h\  tlie  judgment  of  the  oi-plians'  couit,  the  defendujit 
in  error  is  invested  with  tlie  eontrol  of  the  property  and 
person  of  Patrick. 

I  think  it  is  a  fundamental  principk?  of  justice,  es- 
sential to  tlie  rights  of  every  man,  that  he  shall  have 
notice  of  any  judicial  proceedings  that  is  about  to  be  had 
for  the  ])uri)ose  of  divesting  him  of  his  jn-operty,  or  the 
control  of  it,  that  he  may  ai)])ear  and  sliow  to  them,  who 
sit  in  judgment  on  liis  rights,  that  he  has  not  lost  them 
by  tlie  commission  of  a  crime;  nor  should  those  rights  be 
taken  from  him  hj  reason  of  any  misfortune.  That  he 
lias  the  right  to  appear  before  the  jury,  and  the  court, 
and  to  shoAX'  that  he  is  not  insane,  that  he  and  his  prop- 
erty should  not  be  put  in  charge  of  another  is  a  self- 
evident  truth,  and  is  denied  by  no  legal  authority.  (See 
12  Yes.  444;  E.r  parte  Cranmer,  Stock  on  Lunacy,  100.) 
This  being  his  right,  to  appear,  and  defend  himself,  the 
(|uestion  is,  Avliat  etfect  is  the  law  to  give  to  a  proceed- 
ing that  had  denied  this  right? 

In  the  case  of  ^yalt  v.  Ma.rioell,  5  Pickering,  219,  this 
precise  (piestion  came  up,  and  the  court  held,  that  the 
proceeding  of  the  court  of  pi-obate,  and  the  grant  of 
letters  of  guardianship  were  null  and  void,  because  the 
uou  compos  had  no  notice  of  them.  And  in  14  :Mass.  R. 
222,  it  was  determined,  that  it  was  the  right  of  an  ir.- 
dividual  against  whom  proceedings  in  the  court  of  pro- 
bate were  taken  to  appear  and  controvert  the  fact  of  in- 
sanity, and  that  an  imiuisition  taken  without  notice 
was  void. 

These  authorities  seem  to  be  in  unison  with  the  first 
principles  of  justice,  and  are  not  opposed  by  any  authori- 
ties that  have  fallen  under  our  observation.  We  there- 
fore come  to  the  conclusion  that  the  proceedings  of  the 
county  court,  in  the  nature  of  an  inquisition,  and  deter- 


188 


mining"  said  Patrick  to  be  iioii  couipos  mentis,  are  void; 
that  they  are  not  evidence  for  any  purpose  in  the  trial 
of  the  issues  in  (lie  case,  and  sliould  have  been  re- 
jected, and  not  allowed  to  go  to  the  jury.   *  *  * 

Let  the  judgment  be  reversed  and  the  cause  remanded. 

DUE  PKOCESS  OF  LAW. 

Georf/e  BiinJirl-  v.  TJic  People  of  the  State  of  JlUnois, 
149  111.  fiOO. 

(Filed  at  :\It.  Yernon  April  2,  1804.) 

Magruder,  J.,  said :  *  *  *  The  phrase  "due  process 
of  law"  is  the  equivalent  of  the  words  "laAV  of  the  land" 
as  used  in  Magna  Charta,  and  means  "in  the  due  course 
of  legal  proceedings  according  to  those  rules  and  forms 
which  have  been  established  for  the  protection  of  private 
rights."  {Board  of  Education  v.  Bakewell,  122  111.  339; 
Rliinehart  v.  Schut/ler,  2  Gilm.  473;  Davidson  v.  Kiew 
Orleans,  96  U.  S.,  97;  Cooley  on  Cons.  Lim.  5  ed.  marg. 
page  356,  top  page  435.)  An  act  of  the  legislature  is 
not  necessarily  the  "law  of  the  land."  A  State  cannot 
make  anything  "due  process  of  laAV,"  which  by  its  own 
legislation,  it  declares  to  be  such. 

Miuiajfs  Jjcssec  v.  Hohohcn  Land  and  I niprovement 
Co.,  18  How.   (IT.  S.,  1855)   272. 

The  Court,  per  Curtis,  J.,  "The  article  (in  United 
States  Constitution  re  "due  process  of  law")  is  a  re- 
straint on  the  legislative  as  well  as  on  the  executive 
and  judicial  powers  of  the  government,  and  cannot  be 
so  construed  as  to  leave  congress  free  to  make  any  pro- 
cess "due  process  of  law,"  by  its  mere  will. 

Bardivell  v.  Collins,  20  Am.  St.  Kep.  554,  Minn.  (July, 

1890). 


189 


Mr.  Justice  Field,  in  deliveriiiti-  tlie  ()])iiii()ii  of  the 
court  in  the  recent  case  of  Dent  v.  West  Vit<jlnia,  129 
U.  8.  114,  123,  discussing  this  question,  said:  "As  we 
have  said  on  more  than  one  occasion,  it  may  be  difficult, 
if  not  impossible,  to  give  to  the  terms  'due  process  of 
law,'  a  definition  which  will  embrace  every  pernussible 
exertion  of  power  affecting  private  rights,  and  exclude 
such  as  are  forbidden.  They  come  to  us  from  the  law  of 
England,  from  which  country  our  jurisprudence  is  to  a 
great  extent  derived,  ai\d  their  requirement  was  there 
designed  to  secure  the  subject  against  the  arbitrary  ac- 
tion of  the  crown,  and  place  him  under  the  protection  of 
the  law.  They  are  deemed  to  be  equivalent  to  'the  law 
of  the  land.'  In  this  countrv,  the  reouirement  is  intended 
to  have  a  similar  effect  against  legislative  power;  that 
is,  to  secure  the  citizen  against  any  arbitrary  deprivation 
of  his  rights,  whether  relating  to  Ids  life,  his  liberty,  or 
his  property. 

''Due  process  ejf  lair"  not  eonpned  io  judicial  proceed- 
irtf/s.  *  *  *  Due  process  of  law  does  not  always  mean 
judicial  process.  It  is  not  confined  to  judicial  proceed- 
ings, but  extends  to  every  case  which  may  deprive  the 
citizen  of  life,  liberty  or  property,  whether  the  proceed- 
ing be  judicial,  administrative  or  executive  in  its  nature : 
Eanies  v.  ^arar/e,  77  Mq.  212 ;  52  Am.  Rep.  751 ;  Weimer 
v.  Buuhurij,  30  Mich.,  201;  ^'^tuart  v.  Palmer,  74  N.  Y., 
183. 

Mr.  Justice  Miller,  in  delivering  the  opinion  of  the 
court  in  Daridson  v.  New  Orleans,  96  U.  S.  104,  said: 
"Whenever,  by  the  laws  of  a  State  or  by  State  author- 
ity, a  tax,  assessment,  servitude,  or  other  burden  is 
imposed  upon  property  for  the  public  use,  whether  it 
be  for  the  whole  State,  or  of  some  more  limited  portion  of 
the  community,  and  those  laAvs  provide  for  a  mode  con- 
firming or  contesting  the  charge  thus  imposed,  in  the 


190 


ordinary  courts  of  justice,  witli  sucli  notice  to  the  person 
or  sucli  proceeding  in  regard  to  the  property  as  is  ap- 
propriate to  tlie  nature  of  the  case,  tlie  judgment  in 
such  proceedings  cannot  be  said  to  deprive  the  owner 
of  his  property  without  due  process  of  law,  however 
obnoxious  it  may  be  to  otlier  ol)jections.  *  *  *  It  is  not 
possible  to  hold  that  a  party  has,  witliout  due  process 
of  law,  been  deprived  of  his  property,  when,  as  regards 
the  issues  affecting  it,  he  has,  by  tlie  laws  of  the  State, 
a  fair  trial  in  a  court  of  justice,  according  to  the  modes 
of  proceeding  applicable  to  such  a  case."  *  *  * 

But  the  enforcement  bv  a  State  of  a  tax  levied  under 
a  void  law  is  the  deprivation  of  the  owner  of  his  prop- 
erty without  due  process  of  law;  Dundee  Mortgage,  cte., 
Co.  v.  SrJtooI  District  Xo.  1,  19  Fed.  Rep.,  259.  And 
a  law  that  imposes  an  assessment  for  local  improvements, 
without  notice  to,  and  a  hearing  on,  or  an  opportunity 
to  be  heard,  on  the  part  of  the  owner  of  the  property 
to  be  assessed,  deprives  him  of  his  proi)erty  without 
due  process  of  law;  ^^tiiart  v.  Palmer,  74  N.  Y.,  183. 
A  proceeding  for  the  assessment  of  pr-operty  for  taxes 
— that  is,  the  ascertainment  of  its  value  upon  evidence 
taken — is  judicial  in  its  nature.  And  to  make  a  law 
authorizing  such  a  proceeding  valid,  it  must  provide 
some  kind,  of  notice  and  an  opportunity  to  be  heard  re- 
specting it,  before  the  proceeding  becomes  final,  other- 
wise it  will  lack  the  essential  ingredient  of  due  process 
of  law;  County  of  ^onta  (lava  v.  Southern  Paoifie  R.  R. 
Co.,  18  Fed.  Rep.,  385.  *  *  * 

A  statute  which  provides  that  the  rates  of  charges  for 
passengers  and  freights  recommended  and  published 
by  a  State  railroad  commission  shall  be  final  and  con- 
clusive evidence  as  to  what  are  equal  and  reasonable, 
and  that  there  can  be  no  judicial  inquiry  as  to  the  rea- 
sonableness of  such  rates,  deprives  a  railway  company 


191 


of  its  projxn'ty  without  duo  process  of  law:  Chicnijo, 
etc.,  Ry.  Co.  v.  Minnesota,  134  U.  S.  418.  Mr.  Justice 
Blatchford,  in  delivering  the  opinion  of  the  majority 
of  the  conrt  in  this  case,  referring  to  the  statute,  said : 
"It  deprives  the  company  of  its  right  to  a  judicial 
investigation  by  due  process  of  law,  under  the  forms 
and  with  the  machinery  provided  by  the  wisdom  of  suc- 
cessive ages  for  the  investigation,  judicially,  of  the  truth 
of  a  matter  in  controversy."     *     *     * 

A  law  which  authorizes  the  summary  seizure  and 
sale  of  property  in  use  by  a  person  from  whom  a  license 
is  due,  without  any  notice  to  the  ownci-,  without  any  trial, 
and  without  any  ()])])ortuiiity  to  be  heard,  is  void,  because 
it  attempts  to  authorize  the  taking  of  property  without 
due  process  of  law:  (lianriii   v.   Valiton,  8  Mont.  451. 

An  act  which  undertakes  to  charge  the  owner  of  a 
dog  with  the  amount  of  damage  done  by  his  dog,  as 
fixed  by  the  selectmen  of  the  town,  without  an  oppor- 
tunity to  the  owner  to  be  heard,  is  unconstitutional, 
because  it  attempts  to  take  his  property  without  due 
process  of  law :  East  Kinf/ston  v.  Towle,  48  N.  H. 
57;  2  Am.  Rep.  174.     *     *     * 

A  statute  providing  that  no  convict  shall  be  dis- 
charged from  a  State  prison  until  he  lias  remained  the 
full  term  for  which  he  was  sentenced,  excluding  the 
time  he  mav  have  been  in  solitarv  confinement  for  anv 
violation  of  the  rules  and  regulations  of  the  prison, 
deprives  him  of  his  liberty  without  due  process  of  law, 
and  is  therefore  void  :     dross  v.  Rue.  71  Me.  241.   *   *   * 

A  person  imprisoned  for  refusing  to  appear  or  testify 
before  a  county  attorney  under  the  Kansas  act  prohibit- 
ing the  manufacture  and  sale  of  intoxicating  liquors  is 
distrained  of  his  liberty  without  due  ])rocess  of  law: 
In  re  Ziebold,  23  Fed.  Rep.  791.     *     *     * 

A  perusal  of  the  foregoing  cases  will  assist  in  deter- 


192 
mining  the  question,  "AVluit  is  due  process  of  law?" 

BardrveU  v.  Collins    (supra). 

In  re  Kemmler,  136  U.  S.  436,  Mr.  Chief  Justice 
Fuller,  who  delivered  the  opinion  of  the  court  in  that 
case,  discussing  the  question  whether  the  act  was  in 
conflict  Avith  the  Fourteenth  Amendment  to  the  Consti- 
tution of  the  United  States,  said :  "As  due  process  of 
law  in  the  Fifth  Amendment  referred  to  that  law  of 
the  land  which  derives  its  authority  from  the  legisla- 
tive powers  conferred  on  Congress  by  the  Constitution 
of  the  United  States,  exercised  within  the  limits  there- 
in prescribed,  and  interpreted  according  to  the  prin- 
ciples of  the  common  law,  so  in  the  Fourteenth  Amend- 
ment, the  same  words  refer  to  that  law"  of  the  land  in 
each  State  which  derives  its  authority  from  the  in- 
herent and  reserve  i^owers  of  the  State,  exerted  within 
the  limits  of  those  fundamental  principles  of  liberty  and 
justice  which  lie  at  the  base  of  all  our  civil  and  political 
institutions/' 

Moody  V.  Bihh,  <t  a  J.,  50  Alabama,  245. 

Peters,  C.  J.,  said:  "This  great  light  in  this  important 
jurisdiction  may  sometimes  enable  us  to  do  right,  which 
is  the  law  of  laws,  and  what  the  sovereign  authority  al- 
ways must  intend.     *     *     * 

"I.  The  ai^pointment  of  Moody  as  guardian  of  Rufus 
R.  Sims,  l)y  the  ()ri)hans'  Court  of  Tuscaloosa  County,  in 
June,  1849,  whether  for  vspecial  or  general  purposes,  was 
clearly  void.  The  court  acted  without  jurisdiction. 
Sims  was  not  brought  before  the  court  in  any  manner 
and  had  no  notice  whatever  of  the  proceedings  to  de- 
clare him  a  lunatic.  This  was  necessary  before  he  could 
be  put  under  the  restraint  of  a  guardianship  and  de- 
prived of  the  control  of  his  own  person  and  of  his  prop- 


193 


erty-.  This  appointment  was  made  before  the  adoption 
and  proninl<>ation  of  the  Code  of  Alabama.  The  pro- 
ceeding was,  therefore,  under  the  law  as  existed  before 
the  Code  was  proclaimed.  A  like  case  to  this  came  un- 
der the  judicial  notice  of  this  court  in  1852,  at  the  June 
term  of  that  year.  This  was  the  case  of  Eslava  v.  Lc- 
petrc,  21  Ala.,  505.  In  this  latter  case,  the  report  shows 
that  a  guardian  had  been  appointed  for  Mrs.  P]slava  as  a 
person  of  unsound  mind,  on  tlie  petition  of  her  husband, 
by  the  Orphans'  Court  of  Moldle  County,  without  pro- 
ceedings to  have  her  declared  a  lunatic.  The  appoint- 
ment of  the  guardian  was  made  before  the  7th  dav  of 
January,  1849,  as  on  that  day  her  guardian  was  served 
with  subpoena  to  bring  her  into  court.  21  Ala.,  511. 
In  her  case,  the  court  said  :  'This  appointment  was  made 
upon  no  other  assurance  of  the  fact  of  Mrs.  Eslava's 
lunacy  than  a  petition  of  her  husband  without  notice  to 
her,  and  without  the  issue  of  a  writ  de  lunatico  in- 
quirendo,  and  the  verdict  of  a  jury  thereon.  Without 
the  issue  of  this  writ,  and  the  linding  of  the  jury,  the 
county  court  judge  had  no  power  to  declare  her  a  luna- 
tic, or  to  appoint  a  guardian  for  her.'     *     *     * 

"But  the  right  to  life,  liberty,  and  property  is  sacred, 
and  it  cannot  be  invaded  by  the  legislative  power.  Decl. 
of  Independence;  Cooley's  Const.  Limit,  p.  351  et  seq.; 
Sedgwick  on  Stat.  &  Const.  Law,  p.  177  et  seq. 


>} 


The  State  ex  rel.  Larkin  v.  Ryan,  Court  Commis- 
sioner, 70  Wise,  676. 

January  17— February  28,  1888. 

Cassoday,  J.,  said :  ''So  sacred  are  certain  rights  of 
the  citizen  that  they  are  especially  guarded  by  our  na- 
tional constitution ;  which,  among  other  things,  declared 
that  'no  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 

(13) 


194 


United  States;  nor  shall  any  State  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process  of  law ; 
nor  den}'  to  any  person  Avithin  its  jurisdiction  the  equal 
protection  of  the  laws.'  Sec.  1,  Art.  XIV.,  Amend. 
Const.  U.  S.  In  Muglcr  v.  Kansas,  123  U.  S.,  (563,  it 
it  is  said  by  the  court :  'Undoubtedly  the  State  when  pro- 
viding by  legislation  for  the  protection  of  the  public 
health,  the  public  morals,  or  the  public  safety,  is  sub- 
ject to  the  paramount  authority  of  the  Constitution  of 
the  United  States,  and  may  not  violate  rights  secured 
or  guaranteed  bv  that  instrument  or  interfere  with  the 
execution  of  the  powers  confided  to  the  general  govern- 
ment.' " 

Joseph  Chauvin,  Respondent ,  v.  Henry  G.  Valiton, 
Appellant y  Constitutional  Law,  5th  Division,  Revised 
Statutes, 

The  Court  held:  Nothing  can  be  the  law  of  the  land 
in  the  sense  of  the  Constitution,  however  general  it  may 
be,  and  however  it  may  aftect  the  rights  of  all  persons 
alike,  which  deprives  the  citizen  of  his  life,  his  liberty, 
or  his  property,  without  due  process  of  law ;  and  that, 
as  we  have  already  seen,  conlemplates  that  a  hearing 
must  be  allowed  to  him  at  some  stage  of  the  proceed- 
ings against  him,  and  a  hearing  would  be  but  a  hollow 
mockery  if  he  could  not  be  allowed  to  defend  and  be 
protected  in  his  rights  by  the  judgment  of  the  court,  or 
the  administrative  or  executive  officer  with  whom  he  has 
to  do. 

Sidney  H.  Stewart^  Jr.,  AppeUant,  v.  George  W.  Palmer, 
as  Collector,  etc.,  et  al..  Respondents,  74  New  York. 
183  (May,  1878). 

Earl,  J.,  held: 


195 


"I  am  of  the  opinion  tliat  the  Constitution 
sanctions  no  hiw  imposing-  such  an  assessment, 
Avithout  a  notice  to  and  a  hearing  or  an  opi)or- 
tunity  of  a  hearing  by  the  owners  of  the  prop- 
erty to  be  assessed.  It  is  not  enough  that  the 
owners  may  by  chance  have  notice  or  that  thev 
may,  as  a  matter  of  fayor,  have  a  hearing.  The 
law  must  require  notice  to  them,  and  give  them 
the  right  to  a  hearing  and  a^  opportunity  to  be 
heard.     *     *     * 

"^The  constitutional  validity  of  late  is  to  he 
tested,  not  by  what  has  been  done  under  it,  but 
by  what  may,  by  its  authority,  be  done.  The 
Legislature  may  prescribe  the  kind  of  notice  and 
the  mode  in  which  it  shall  be  given,  but  it  can- 
not dispense  with  all  notice.     *     *     * 

"■The  Legislature  can  no  more  arbitraT-ily  ini- 
pose  an  assessment  for  whicli  property  may  be 
taken  and  sokl,  than  it  can  render  a  judgment 
against  a  pcTson  without  a  liearing.  ft  is  a  rule 
founded  on  tJic  first  priitciples  of  natural  justice 
older  than  written  constitutions,  that  a  citizen 
shall  not  be  deprived  of  his  life,  liberty  or  property 
without  an  opporfii niti/  to  he  heard  in  the  de- 
fense of  his  rights,  and  the  constitutional  provision 
that  no  person  sliall  be  dejirived  of  th<^se  'with- 
out due  pr()C(^ss  of  hiw'  has  its  ftmndation  in  this 
rule.  This  prorision  is  the  most  important  guar- 
anty of  personal  rights  to  be  found  i)i  Ihe  Federal 
or  !>itate  Constitution.  It  is  a  limitation  upon 
arbitrary  poiver,  and  is  a  guaranty  against  arbi- 
tra)-y  legislation.  No  citizen  shall  arbitrarily  be 
deprived  of  his  life,  liberty  or  property.  This  the 
Legislature  cannot  do  nor  authorize  to  be  done. 
'Due  process  of  law'  is  not  confined  to  judicial 


196 


proceedings,  Imt  extends  to  every  case  which  niaj' 
deprive  a  citizen  of  life,  liberty,  or  property, 
whether  the  proceeding  be  judicial,  administrative 
or  executive  (Weinier  v.  Brueinbury,  30  Mich., 
201). 

"This  great  guaranty  is  always  and  everywhere 
present  to  protect  the  citizen  against  arl)itrary 
interference  A\'ith  these  sacred  rights.  *  *  *  it 
may,  however,  be  argued  generally  that  due  pro- 
cess of  law  required  an  orderly  proceeding  adapt- 
ed to  the  nature  of  the  case  in  which  the  citizen 
has  an  opportunity  to  be  heard,  and  to  defend, 
enforce  and  protect  his  rights.  A  hearing  or  an 
opportunity  to  be  heard  is  absolutely  essential. 
We  cannot  conceive  of  due  process  of  law  without 
this." 

In  PJukKlclphia  v.  Miller  (49  Penn.  110)  Agner,  J., 
speaking  of  taxation,  says:  ''Notice  or  at  least  the 
means  of  knowledge  is  an  essential  element  of  every  just 
proceeding  which  affects  the  rights  of  persons  or  prop- 
er t  v."  *  *  * 

It  is  a  plain  princiijle  of  justice  applicable  to  all 
judicial  proceedings,  that  no  person  should  be  con- 
demned, or  shall  suffer  judgment  against  him  without 
an  opportunity  to  be  heard;  and  he  says  that  an  act 
"assessing  persons  without  notice  transcends  the  power 
of  the  Legislature,  and  is  itself  void." 

Portland  v.  Bcnif/or  (65  Me.  120). 

Walton,  J.,  said :  "If  Avhite  men  and  women  may  be 
thus  summai'ily  disposed  of  at  the  North,  of  course,  black 
ones  may  be  disposed  of  in  the  sanu^  way  at  the  South; 
and  thus  the  xevx  evil  which  it  was  particularly  the  ob- 


197 


ject  of  tlic  Fourteen  Hi  Aineiidinent  to  eradicate  will  .still 
exist. 

The  ol)jeetioii  to  such  a  proceediiiii  does  not  lie  in  the 
fact  that  the  persons  named  may  be  restrained  of  their 
liberty,  bnt  in  allowino-  it  to  be  done  withont  first  having 
a  judicial  investigation  to  ascertain  whether  the  charges 
made  against  them  are  true.  Not  in  committing  them  to 
the  workhouse,  but  in  doing  it  without  first  giving  them 
an  opportunity  to  be  heard.  * 


*   * 


Fliilo  Parsons  and  (mother  v.  George  B.  Russell  and 
another,  11  Michigan,  113. 

It  was  said:  ''Story  defines  'due  process,*  etc.,  as 
'being  brought  in  to  answer/  etc.  This  also  means  much 
the  same  as  'agreeable  to  the  principles  and  usages  of 
law'  found  in  many  statutes,  c.  g.  U.  S.  Jnd.  Act  §  14; 
and  these  principles  and  usages  form  the  substratum  of 
all  State  and  Federal  laws;  Marshall  Ch.,  J.,  Burr's 
Trial.    *  *  * 

^Martin,  Chief  Justice,  said: 

Whatever  may  be  the  difficulty  of  defining  this  phrase 
of  the  ronstitution  when  sought  to  be  applied  to  other 
proceedings,  when  used  in  relation  to  those  of  a  judicial 
character,  it  is  evidently,  and  has  been  so  universally 
held,  intended  to  secure  to  the  citizen  the  right  to  a 
trial  according  to  the  forms  of  law  of  the  (piestions  of 
his  liability  and  responsibility,  before  his  person  or  his 
property  shall  l)e  condemned.  Judicial  action  is  in  such 
case  imperatively  required,  and  "implies  and  includes 
actor,  reus,  ja<h\i- — regular  allegations,  opportunity  to 
answer,  and  trial  according  to  some  settled  course  of 
judicial  proceedings."  While  we  adopt  the  common  law, 
or,  to  speak  more  accurately,  so  long  as  we  recognize 
and  submit  to  it,  we  recognize  and  adopt  the  fundamental 
principle  that  no  man  sliall  be  party  and  judge  in  his  own 


198 


case;  that  if  ti-ied,  it  sluill  be  by  his  peers,  and  if  de- 
prived of  liberty  or  property,  it  sh.all  be  ])y  iiii])artial 
judicial  authority,  after  a  trial  and  ju<li>nieat  under 
general  laws.     *     *     * 

In  the  Common  Pleas  of  Philadelphia. 

Commonwealth  ex  relatione  Isaac  Edimindson  Stew- 
art V.  Thoiitas  *S^  KirkhrUJe,  M.  D.  2  Brewster,  419. 

Brewster,  J.,  said  :  I  hold  to  the  doctrine  that  no  man 
can  be  deprived  of  his  liberty  without  the  judgment  of 
his  peers ;  and  that  it  matters  not  to  the  law  whether  the 
alleged  cause  of  detention  is  insanity  or  crime.     *     *     * 

The  record  shows  no  order  made  by  the  court  for  serv- 
ice of  a  notice  of  the  proceedings,  either  upon  the  alleged 
lunatic  or  any  other  person ;  nor  does  it  show  that  notice 
of  any  kind  was  given  to  any  person.  Lord  Chancellor 
Erskine  {ex  parte  Cranmer,  12  Ves.  Jr.,  455),  said: 
''The  party  must  certainly  be  present  at  the  execution 
of  the  commission;  it  is  his  privilege.'*  The  same  rule 
has  been  adopted  in  the  ITnited  States.  ( See  Russell's 
Case,  1  Barb.  Ch.  Rep.,  38;  and  Hinchman's  Case, 
Brightly \s  Rep.,  181. )      *     *     * 

It  is  abhorrent  alike  to  our  sense  of  justice  and  to  all 
judicial  precedent  that  his  character,  liberty,  and  estate 
should  be  swept  away  from  him  without  a  hearing  or 
opportunity  of  defense.  To  hold  otherwise  would  be 
contrary  to  every  principle  of  reason  and  justice. 

They  call  for  notice,  and  tested  by  their  requirement 
this  decree  crumbles  to  ashes. 

In  Dowell  against  Jacks,  53  North  Carolina  Reports, 
page  387,  the  following  is  the  rerhatim  finding  of  the 
court : 

Manly,  Judge:  We  regard  as  of  no  importance,  con- 
nected with  the  merits  of  the  petitioner's  case,  that  at- 
torneys were  employed  by  a  friend  to  attend,  in  her  be- 


199 

half,  to  the  inqnisition  of  lunacy  at  July  Term,  1859. 
She  had  no  notice — was  not  legally  represented,  and 
what  is  of  still  greater-  importance,  was  not  present,  to 
be  seen  and  examined  by  the  jury. 

Benjaiiiin  Chase,  Appellant,  ttc,  VEUsrs  Bnizillai 
Hathaway,  14  Mass.,  221  (1817),  .July  Term. 

Parker,  J.,  said :  ''But  we  are  of  opinion  that,  notwith- 
standing the  silence  of  the  statute,  no  decree  of  the 
Probate  Court  so  materially  affecting  the  rights  of  prop- 
erty and  the  person,  can  be  valid  unless  the  party  to  be 
affected  has  had  an  opportunity  to  be  heard  in  defense 
of  his  rights. 

It  is  a  fundamental  principle  of  justice,  essential  to 
every  free  government,  that  every  citizen  shall  be  main- 
tained in  the  enjoyment  of  his  liberty  and  property,  un- 
less he  has  forfeited  them  by  the  standing  laws  of  the 
community,  and  has  had  opportunity  to  answer  such 
charges  as,  according  to  those  laws,  will  justify  a  for- 
feiture or  suspension  of  them.  And  whenever  a  Legis- 
lature has  provided  that,  on  account  of  crime  or  mis- 
fortune, the  public  safety  or  convenience  demands  a  sus- 
pension of  these  essential  rights  of  the  individual,  and 
has  provided  a  judicial  process  by  which  the  fact  shall 
be  ascertained,  it  is  to  be  understood  as  required  that 
the  tribunal,  to  which  is  committed  the  duty  of  inquiring 
and  determining,  shall  give  opportunity  to  the  subject  to 
be  heard  in  support  of  his  innocence  or  his  capacity. 

It  has  been  intimated  that  notice  to  an  insane  person 
would  be  of  no  avail,  because  he  would  be  incapable  of 
deriving  advantage  from  it.  But  the  question  ui)on 
which  the  whole  process  turns  is,  whether  he  is  insane ; 
for  the  presumption  of  law  is  that  every  uum  is  of  sound 
mind  until  the  contrary  is  proved ;  and  it  being  possible 
that  interested  relatives  might  falsely  suggest  insanity 


200 


with  a  view  to  deprive  tlie  party  of  the  power  of  dis- 
posing^ of  his  estate,  it  is  essential  that  every  possibility 
should  be  guarded  against  by  personal  notice  to  him 
when  practicable,  that  he  may  expose  himself  to  the  view 
of  the  judge  and  prove,  by  his  own  conduct  and  actions, 
the  falsity  of  the  charge.     *     *     * 

Indeed,  it  would  seem  strange  that  the  whole  estate 
of  a  citizen  might  be  taken  froui  him  and  committed 
to  others,  and  his  personal  liberty  be  restrained,  upon 
an  ex  parte  proceeding,  without  any  notice  of  the  pend- 
ency of  a  complaint,  upon  a  suggestion  of  lunacy  or 
other  defect  of  understanding;  while  the  depriving  of 
the  minutest  portion  of  that  property  or  the  slightest  de- 
tention of  his  person  would  be  illegal  upon  a  charge  of 
crime,  or  a  breach  of  a  civil  contract,  unless  all  the  for- 
malities of  a  trial  were  secured  to  him  by  the  forms  of 
process,  and  the  regular  execution  of  it." 

Re  W.  H.  Lambert  (Cal.),  L.  R.  A.,  55  (1902),  p. 

856. 

Harrison,  J.,  said  : 

"An  examinati(»n  of  tlie  foregoing  provisions  of 
the  statute  shows  that  tliere  is  no  provision  for  giv- 
ing to  the  alleged  insane  person  any  notice  of  the 
proceedings  against  liim,  and  that  under  its  pro- 
visions the  first  intimation  tliat  he  may  have 
thereof  may  be  when  tlie  SherifC  takes  him  into 
liis  custody  under  the  order  of  commitment.  The 
person  making  the  application  for  the  commit- 
ment is  not  required  to  give  him  any  notice  there- 
of, nor  is  there  any  requirement  that  he  shall  be 
informed  of  the  object  for  which  the  physicians 
are  examinino-  him."     *     *     * 


201 


"This  ceitirtciite  iiiiiy  he  iiukIc  b.v  any  two  physicians 
who  liavc  ivccivcd  and  filed  the  eertiticate  of  a  sn])ei-ior 
jndiie  showinii  that  they  possess  the  recpiisile  <|ualiiica- 
tiou.  There  is  no  limit  to  the  nnndKM-  of  physicians  who 
may  heconie  such  medical  examiners,  noi'  does  the  act 
authorize  a  superior  judjie  to  refuse  his  (•<-rtiti!  ate  to  any 
physician  who  nmy  show  himself  (Uialilied  tiierefor.  No 
certificate  is  to  be  made  unless  two  examiners  shall  find 
the  person  to  be  insane,  but  the  ])ersou  seekinj^,-  the  order 
of  commitment  is  not  concluded  by  the  determination 
of  the  first  examiners  to  whom  he  nuiy  apply,  but  is  at 
liberty  to  continue  his  application  for  a  certificate  until 
he  shall  find  two  examiners  who  will  certify  to  the  insani- 
ty of  the  person.  The  examination  is  not  made  by  them 
under  any  direction  of  the  Judiie,  nor  do  they  receiye 
any  letter  of  authority  or  power  to  compel  testimony. 
The  statute  does  not  re(]uire  tliat  their  certificate  shall  be 
ijiven  under  oath,  nor  does  it  re(|uire  that  the  witnesses 
before  the  examiners  shall  «iye  their  testimony  under 
oath,  or  proyide  for  any  oath  to  be  administered  to  such 
witiu'sses.  They  are  only  re(|uired  to  make  "such  exami- 
nation" of  the  person  as  will  enable  them  to  form  an 
opinion  "as  to  his  sanity  or  insanity,"  and  their  exami- 
naticm  may  in  fad  be  so  conducted  that  he  will  haye  no 
knowled<>e  that  they  are  examining  him  for  that  purpose, 
or  eyen  makinii;  any  examination  of  him.  *  *  *  The 
statute  does  not  reipiire  the  Jud^e,  when  he  passes  upon 
their  sufficiency,  to  i»iye  any  notice  thereof  to  the  alleged 
insane  person,  or  eyen  to  require  him  to  be  brou«iht  into 
his  presence.     *     *     * 

"The  proyision  in  section  4  for  a  trial  upon  the  ques- 
tion of  his  insanity  is  effectiye  only  after  the  order  of 
commitment  has  been  made,  under  which  the  person  may 
haye  been  immediately  placed  in  the  hospital,  and  cannot 
be  made  a   substitute   for  his  rif»ht  to  have  an  oppor- 


202 


tunity  to  be  heard,  and  to  defend  liimself  against  the 
charge  before  being  deprived  of  his  liberty.  For  the  pur- 
pose of  shoAving  the  inefficiency  of  this  provision  in  pro- 
tecting a  person  against  an  invasion  of  his  constitutional 
riglit  to  a  notice  and  a  hearing  before  he  can  be  deprived 
of  his  liberty,  it  is  only  necessar^^  to  read,  in  connection 
therewith,  the  provision  that,  before  sucli  trial  can  be 
had,  he  must  provide  for  the  paynsent  of  the  costs  there- 
of, and  also  the  provision  of  section  8  in  article  I,  of  the 
act,  that,  after  he  has  been  committed  to  the  hospital, 
he  may  be  restrained  of  all  correspondence  with  the  outer 
world,  except  with  the  superioi*  judge  and  the  district 
attornev  of  the  county  from  which  he  was  committed. 
The  statute  thus  clearly  provides  that  the  proceedings 
before  the  judge  in  a  case  like  the  present  may  be  en- 
tirely cjc  parte,  and  that  he  may  be  satistied  that  the  al- 
leged insane  person  is  insane  by  merely  examining  the 
certificate  and  petition.  He  may  issue  the  order  of 
commitment  upon  the  <)i)inion  of  the  two  examiners,  with- 
out any  examination  by  himself  of  the  person  sought  to 
be  committed,  or  of  the  examiners  who  have  made  the 
certificate,  and  without  knowledge  of  tlie  facts  or  testi- 
mony upon  which  they  have  made  their  certificates.  In 
thus  acting  upon  these  documents,  he  takes  as  tlie  sole 
l)asis  of  his  action  the  opinion  of  the  examiners,  ascer- 
tained as  before  shown,  that  the  individual  is  Insane. 
The  opinion  of  practitioners  of  medicine,  however,  upon 
the  (juestion  of  insanity,  are  not  always  uniform  or  in- 
fallible, especially  if  sucli  opinion  forinf^d  e.f  parte,  or 
without  an  opportunity  for  a  full  investigation  of  the 
charge.  The  mere  certificate  of  an  opinion  thus  obtained 
ought  not  to  be  a  sufficient  warrant  for  an  order  for  the 
confinement  of  a  person  in  an  insane  asylum.  There 
should  at  least  be  the  semblance  of  a  judicial  iuA'estiga- 


2oa 


tion,  of  wlik'h  a  public  record  can  be  preserved,  before  a 
person  can  be  deprived  of  bis  liberty.     *     *     * 

It  does  not  appear,  eitber  from  tlie  order  of  commit- 
ment or  by  tlie  accompanying  documents,  tbat  any  notice 
was  given  to  tbe  petitioner  of  an  intention  to  make  an 
application  for  tbe  order,  or  tbat  be  was  ever  notified  or 
bad  any  knowledge  tbat  tbe  medical  examiners  would 
make  any  examination  or  investigation  in  reference  to 
bis  sanity,  or  tbat  tbe  judge  of  tbe  superior  court  ever 
directed  any  notice  to  be  given  bim  of  tbe  application, 
or  of  an  intention  to  determine  tbe  (Question  of  bis  sanity ; 
nor  does  it  appear  tbat  be  Avas  present  at  tbe  time  tbe 
matter  was  under  consideration  by  tbe  judge,  or  was 
at  any  time  seen  or  examined  by  tbe  judge.  Tbe  act 
in  (question  was  evidently  suggested  by  tbe  insanity 
law  of  NeAV  York  passed  in  189G  (1  N.  Y.  Laws  1896, 
cbap.  545),  and  tbe  provisions  of  tbat  act  bave  been 
closely  copied.     *     *     * 

In  People,  e.r  rel.  ^^itllirait  \.  Wendell,  33  Misc.  496, 
68  N.  Y.  Supp.  948,  tbe  relator  bad  been  committed  to 
an  insane  asylum  under  tbe  pi'ovisions  of  tbis  section, 
but  bad  bad  no  notice  of  tbe  application,  eitber  person- 
ally or  by  substituted  service  on  any  one  in  ber  bebalf, 
and  there  Avas  no  bearing  at  Avhicb  sbe  was  eitber  person- 
ally present  or  represented  by  any  person.  Tbe  court 
beld  tbat  to  tbe  extent  tbat  tbe  insanity  law  autborized 
sucb  proceeding,  it  was  in  violation  of  tbe  Constitution, 
in  tbat  it  deprived  ber  of  ber  liberty  witbout  due  pro- 
cess of  law,  and  (►rdered  ber  release.  An  order  for  the 
commitment  of  a  person  to  an  insane  hospital  is  essen- 
tially a  judgment  by  which  he  is  depriAT^d  of  bis  liberty, 
and  it  is  a  cardinal  principle  in  English  jurisprudence 
that,  before  any  judgment  can  be  pronounced  against  a 
person,  there  must  hnxe  been  a  trial  of  the  issue  upon 
which  the  judgment  is  given.  Under  the  laAvs  of  this  State 


204 


a  guardian  of  the  person  or  tlie  estate  of  an  insane  per- 
son cannot  be  appointed  without  giving  liim  notice  of  the 
application  therefor  (Code  Civ.  Proc.  §  1763)  ;  nor  can 
a  judgment  for  so  small  a  sum  as  $5  be  rendered  against 
him  unless  he  has  been  served  with  a  summons  in  the 
action.  (Code  Civ.  Proc.  §  411.)  Much  more  is  there 
reason  foi'  giving  him  notice  of  an  apjjiication  to  de- 
prive him  of  his  personal  liberty.  The  provision  in  the 
statute  for  a  notice  to  a  relative  or  friend  of  the  allege<l 
insane  person  cannot  be  made  the  e(|uivalent  of  a  notice 
to  the  person  himself.     *     *     * 

^\'hat  constitutes  due  pi'ocess  of  law  mav  not  be  readilv 
formula (^ed  in  a  definition  of  universal  application,  but 
it  includes  in  all  cases  the  right  of  the  person  to  such  no- 
tice of  the  claim  as  is  appropriate  to  the  proceedings  and 
adapted  to  the  nature  of  the  case,  and  the  right  to  be 
heard  before  an  order  of  judgment  in  the  proceedings 
can  be  nmde  by  whicli  he  will  be  deprived  of  his  life, 
liberty  or  property.  The  constitutional  guarantee  that 
he  shall  not  be  deprived  of  his  liberty  without  due  process 
of  law,  is  violated  whenever  such  judgment  is  had  Avith- 
out  giving  liiin  an  opportunity  to  be  heard  in  defense 
of  the  charge,  and  upon  such  hearing  to  offer  evidence 
in  support  of  his  defense.  If  his  right  to  a  hearing  de- 
pends u])on  the  will  or  caprice  of  others,  or  upon  the 
discretion  or  will  of  the  judge  who  is  to  make  a  decision 
upon  the  issue,  he  is  not  protected  in  his  constitutional 
rights.  Undenrood  v.  People,  32  Mich.  1,  20  Am.  Rep. 
633.  To  say  that,  if  he  is  in  fact  insane,  therefore  any 
notice  to  him  would  be  vain,  is  to  beg  the  very  question 
whose  determination  underlies  the  right  of  the  State  to 
deprive  him  of  his  liberty.  The  fact  of  his  insanity  is 
to  be  determined  before  his  right  to  his  liberty  can  be 
violated.  If  that  question  is  determined  against  him 
without  any  notice  or  opportunity  to  be  heard  or  to  in- 


205 


trodnco  ovidouco  in  liis  belialf,  and  nnder  snoh  doter- 
mination  he  is  confined  in  the  hospital,  his  constitutional 
linjirantv  is  viohited. 

The  case  before  ns  does  not  involve  the  rij>ht  of  the 
State  to  provide  for  the  summary  arrest  of  a  person 
against  whom  a  charge  of  insanity  is  made,  and  his  tem- 
porary detention  until  the  truth  of  the  charge  can  be 
investigated.  Such  arrest  would  itself  be  a  notice  to 
him  of  the  charge,  under  which  he  would  be  afforded  an 
opportunity  for  a  hearing  thereon.  Nor  is  there  in- 
volved the  right  of  the  State  to  permanently  restrain 
an  insane  person  of  his  liberty,  whether  such  person  be 
harmless  or  dangerous,  but  the  question  is  whether  he 
is  entitled  to  a  judicial  investigation  of  the  charge  that 
he  is  insane,  and  the  right  to  be  heard  thereon  before  its 
determination.  The  question  to  be  determined  is  not 
whether  the  action  of  the  judge  in  investigating  the  in- 
sanity of  the  petitioner  w^as  conducted  under  the  forms 
of  law,  and  with  proper  regard  for  his  rights,  but 
whether  the  Judge  had  the  right  to  enter  upon  the  in- 
vestigation, or  take  any  action  whatever  in  reference 
to  his  sanity.     *     *     * 

"It  is  not  enough  that  (he)  *  *  *  may  by  chance, 
have  notice,  or  that  he  may,  as  a  matter  of  favor,  have 
a  hearing.  The  law  must  require  notice  to  him  *  *  * 
and  give  (him)  *  *  *  the  right  to  a  hearing,  and 
an  opportunity  to  be  heard.  *  *  *  The  constitu- 
tional validity  of  law  is  to  be  tested  not  by  what  has 
been  done  under  it,  but  bv  what  mav  bv  its  authoritv 
be  done."  .^tnart  v.  Palmer,  74  N.  Y.,  188,  30  Am.  Kep., 
291.  "It  is  not  what  has  been  done,  or  ordinarily  would 
be  done  under  a  statute,  but  what  might  be  done  under 
it,  that  determines  whether  it  infringes  upon  the  con- 
stitutional right  of  the  citizen.  The  Constitution  guards 
against  the  chances  of  infringement."     Bennett  v.  Davis, 


20G 


90  Me.,  105 ;  37  Atl.,  865.  The  followino-  authorities  may 
be  referred  to  in  support  of  the  foregoing  views :  Under- 
wood V.  People,  32  Mich.,  1;  20  Am.  Rep.,  633.  Re 
Doyle,  16  R.  I.,  537;  5  L.  R.  A.,  359,  18  Atl.,  159. 
State  V.  Billings,  55  Minn.,  467;  57  N.  W.,  206,  794. 
Portland  v.  Banf/or,  65  Me.,  120;  20  Am.  Rep.,  681. 
Bennett  v.  Davis,  90  Me.,  102 ;  37  Atl.,  864.  People  ex 
rel.  Ordway  v.  St.  Xavier's  Sanitarium ,  34  App.  Div., 
363;  56  N.  Y.  Supp.,  431.  In  the  case  last  cited  the 
question  was  quite  fully  considered  by  the  General  Term 
of  the  Supreme  Court  of  New  York.  The  relator  had 
been  committed  to  an  asylum  for  inebriates  for  a  term 
of  one  year  under  provision  of  a  statute  of  that  State 
authorizing  such  commitment  to  be  made  by  any  judge 
of  a  court  of  record  upon  a  certificate  in  writing,  signed 
by  two  physicians,  containing  statements  bringing  the 
person  within  the  description  mentioned  in  the  statute. 
It  was  held  that  as  the  order  had  been  made  without  any 
notice  to  the  relator,  and  without  her  presence,  she  was 
depi'ived  of  her  liberty  without  due  process  of  law,  and 
that  the  commitment  was  void;  the  Court  very  tersely 
and  aptly  phrasing  the  principle  underlying  its  decision 
as  follows:  "No  matter  what  may  be  the  ostensible  or 
real  purpose  in  restraining  a  person  of  his  liberty, — 
whether  it  is  to  punish  for  an  offense  against  the  law 
or  to  protect  the  person  from  himself,  or  the  community 
from  apprehended  acts, — such  restraint  cannot  be  made 
permanent  or  of  long  continuance  unless  by  due  process 
of  law." 

Under  the  foregoing  considerations,  it  must  be  held 
that  the  insanity  law  of  1897  to  the  extent  that  it  au- 
thorizes the  confinement  of  a  person  in  an  insane  asylum 
without  giving  him  notice  and  an  opf>ortunity  to  be 
heard  upon  the  charge  against  him,  is  unconstitutional. 


207 


and  that  tlie  proceedings  by  virtue  of  wliicli  the  peti- 
tioner is  held  by  the  respondent  are  invalid. 

It  is  ordered  that  the  petitioner  be  released  from  the 
asvliim. 

We  concur:  Beatty,  (Mi.  .1.,  Temple,  J.,  Henshaw,  J., 
Garoutte,  J.,  dissenting. 

Matter  of  Georgiana  G.  K.  Wendel. 

The  People  ex  reJ.  Maurice  J.  l^ullivan.  Relator^  v. 
John  G.  Wendel  and  Mary  E.  A.  Wendel,  Respondents, 
33  Misc.,  -190)  (Supreme  Court,  Kings,  Special  Term,  De- 
cember, 1900). 

Marean,  J.,  said : 

"She  had  no  notice  of  the  application,  either 
personal  or  by  substituted  service  on  some  per- 
son in  her  behalf,  and  there  was  no  hearing  at 
which  she  was  either  present  or  represented  by 
any  other  person.  She  had  been  finally  adjudged 
insane  and  committed  to  perpetual  restraint, 
without  notice  or  hearing.  She  is  deprived  of 
her  liberty,  therefore,  without  due  process  of  law 
{People  ex  rel.  Ordwai/  v.  St.  Saviour's  Sanita- 
rium, 34  App.  Div.,  363).  The  Insanity  Law,  so 
far  as  it  permits  this,  is  in  violation  of  the  Con- 
stitution." 

"When  one  has  been  duly  adjudged  insane,  when  his 
status  as  an  insane  person  has  been  duly  established, 
personal  notice,  or  notice  of  proceedings  affecting  his 
interest,  may  be  dispensed  with,  if  it  appears  that  such 
service  would  be  prejudicial  to  his  mental  condition. 
But,  for  the  protection  of  those  who  are  sane,  it  ought 


208 


not  to  be  tolerated  that  any  person  should  be  adjudged 
insane,  and  finally  eoniniitted,  without  either  notice  or 
actual  hearing. 

"It  is  doubtful,  also,  if  the  connnitnient  of  the  alleged 
incompetent  to  the  custody  of  her  sister,  even  if  it  were 
valid,  warranted  her  transfer  to  the  hospital  by  the  com- 
mission. The  statute  only  permits  transfers  from  one 
hospital  to  another. 

''She  is  discharged.'" 

WEST  VIRGINIA  SIU^REME  COURT  OF  APPEALS. 

Heil   J.   Evans,   Committee  of   Evan   Morgan    v. 

Omer  B.  Johnson  ef  al.; 
Thornton   Pickenpaugh,   Impleaded,    etc.,    Appt. 

(W.  Va.),  April,  1894;  23  L.  R.  A.,  737. 

Brannou,  P.,  said : 

"The  brief  of  appellant's  counsel,  in  its  open- 
ing, presents  what  in  its  nature  is  the  first  ques- 
tion for  us  to  decide,  by  insisting  that  the  plaintiff 
has  no  right  to  recover  in  this  suit  or  any  suit. 
The  first  reason  given  by  counsel  for  this  con- 
tention is  that  the  appointment  of  Heil  J.  Evans 
to  be  committee  of  Evan  Morgan  as  an  insane 
person  is  void  for  want  of  notice  to  said  Evan 
Morgan.  In  Lance  r.  McCoy,  34  W.  Va.,  416, 
the  opinion  is  expressed  that  such  an  appoint- 
ment bv  a  Countv  Court  without  notice,  as  re- 
quired  by  Code,  Chap.  58,  No.  34,  is  void.  A  re- 
examination of  this  question  in  this  case  has  con- 
firmed me  in  the  view  then  expressed.  The  ques- 
tion is  of  importance,  both  because  of  its  frequent 
occurrence  and  of  its  effect  upon  })ersons  alleged 


209 


to  be  iiisaiii'.  So  far  as  iiiv  observation  lias  ji;one, 
the  practice  has  been  in  Clerk's  Offices  of  the 
County  Courts  and  in  County  Courts,  to  make 
such  appointments  without  such  notice.  It  lies 
at  the  foundation  of  justice  in  all  lei»al  proceed- 
ings, that  the  person  to  be  affected  have  notice 
of  such  proceedings.  As  such  an  appointment 
takes  from  the  person  the  possession  and  control 
of  his  property  and  even  his  freedom  of  person, 
and  commits  his  property,  his  person,  his  liberty, 
to  another,  stamps  him  with  the  stigma  of  insan- 
ity and  degrades  him  in  public  estimation  no  more 
important  order  touching  a  man  can  be  made 
short  of  conviction  of  infamous  crime.  Will  it 
be  said  in  ansirer  to  that  that  he  is  insane  and 
that  notice  to  an  insane  man  will  do  him  no  good? 
The  response  is  that  his  insanity  is  the  very  ques- 
tion to  be  tried,  and  he  the  only  party  interested, 
in  the  issue.  Often,  if  given  notice,  he  will  be 
prompt  to  attend  and  in  his  person  be  the  unan- 
stverable  witness  of  his  sanity:  often,  if  not  given 
notice,  those  interested  in  using  or  robbing  him 
of  his  property  will  effectuate  a  corrupt  plan. 
Almost  as  well  might  we  convict  a  man  of  crime 
without  notice.  There  is  abundant  authority  for 
this  position.  Even  though  the  statute  be  silent  as 
to  notice,  as  onrs  to  appointment  of  committees  by 
County  Courts  is,  though  that  as  to  Circuit  Court 
appointments  requires  notice,  yet  the  common  law 
steps  in  and  requires  it.'" 

See  Chase  r.  Hathaway,  U  Mass.,  222,  224; 
Hathaway  v.  Clark,  5  Tick.,  490;  Hutchins  v. 
Johnson,  12  Conn.,  3Tfi,  30  Am.  Dec,  022 ;  Mc- 
Curry  v.  Hooper,  12  Ala.,  823,  46  Am.  Dec, 
280;  Monroe  County  Suprs.  c.  Budlong,  51 


(14) 


210 

Rarl).,  493;  Eslava  v.  Lrpetre,  21  Ala.,  501, 
56  Am.  Dec,  20(1;  Duteher  r.  Hill,  29  Mo;, 
271,  77  Am.  Dec,  572 ;  Buswell,  Insanity,  No. 
55;  Stafford  v.  Stafford,  I  Mart.  (N.  S.),  551. 

In  Molton  r.  Henderson,  62  Ala.,  426,  held  that  "in- 
quisition of  hinaey  Avithout  personal  notice  to  the  al- 
leged non  compos  is  void,  so  is  the  appointment  by  the 
probate  court  of  a  guardian  for  said  lunatic,  and  the 
proceedings  by  such  guardian  for  a  sale  of  lands  be- 
longing  to   said   lunatic"      A   statute   authorizing   an 
inebriate  to  be  committed  to  a  hospital  on  ex  parte  pro- 
ceeding was  held  void  by  the  New  York  Supreme  ('ourt. 
Re  Janes,  30  How.   Pr.,  446.     In  Georgia  the  statute 
required  notice  to  three  relatives  of  the  person  before 
appointment  of  a  guardian  over  him  as  an  insane  per- 
son.    Judge  Bleckley,  delivering  the  opinion,  thought 
there  ought  also  to  be  notice  to  the  person.     He  said : 
"It  is,  to  say  the  least,  doubtful  whether  the  property 
of  an  adult  citizen  can  be  taken  out  of  his  custody  and 
committed  to  guardianship   Avithout  previous  Avarning 
served  either  upon  him,  or  some  person  duly  constituted 
by  law  or  some  legal  tribunal  to  be  notified  in  his  stead. 
If  it  was  unreasonable  in  the  opinion  of  a  Roman  Gov- 
ernor,* to  send  a  ])risoner  and  not  signify  withal  the 


*ACTS,   CHAPTER  XXV. 

"(13)  And  after  certain  days  King  Agrippa  and  Bernice  came 
unto  Caesarea  to  salute  Festus. 

(14)  And  when  they  had  been  there  many  days,  Festus  declared 
Paul's  cause  unto  the  king,  saying.  There  is  a  certain  man  left  in 
bonds  by  Felix: 

(15)  About  whom,  when  I  was  at  Jerusalem,  the  chief  priests 
and  the  elders  of  the  Jews  informed  me,  desiring  to  have  judgment 
against  him. 

(16)  To  whom  I  answered,  It  is  not  the  manner  of  the  Romans 
to  deliver  any  man  to  die,  before  that  he  which  is  accused  have 
the  accusers  face  to  face,   and  have  license  to  answer  for   himself 


211 

crime  allej^ed  apiinst  him,  the  law  judges  it  to  be  equally 
so  to  pass  upon  the  dearest  civil  ri<j;lits  of  the  citizen, 
witliont  first  i>ivinji  him  notice  of  his  adversary's  com- 
plaint. The  truth  is  that  at  the  door  of  every  temple 
of  the  laws  in  this  broad  land  stands  justice,  with  her 
preliminary  requirement  upon  all  administrations: — 
You  shall  condemn  no  man  unheard.  The  requirrment 
is  as  old,  at  least,  as  Magna  Cha/rta.  It  is  the  most 
precious  of  all  gifts  of  freedom,  thrtt  no  man  be  disseised 
of  his  property  or  deprived  of  his  liberty,  or  in  any  way 
injured,  nisi  per  legale  judicum  parium  suorum,  rel  per 

concerning  the  crime  laid  against  him. 

******* 

(25)  But  when  I  found  that  he  had  committed  nothing  worthy 
of  death,  and  that  he  himself  hath  appealed  to  Augustus,  I  have 
determined  to  send  him. 

(26)  Of  whom  I  have  no  certain  thing  to  write  unto  my  lord. 
Wherefore  I  have  brought  him  forth  before  you,  and  specially  be- 
fore thee,  O  king  Agrippa,  that  after  examination  had,  I  might  have 
somewhat  to  write. 

(27)  For  it  seemeth  to  me  unreasonable  to  send  a  prisoner,  and 
not  withal  to  signify  the  crimes  laid  against  him." 

ST.  JOHN,  CHAPTER  VII. 

"(49)      But  this  people  who  knoweth  not  the  law  are  cursed. 

(50)  Nicodemus  saith  unto  them,  (he  that  came  to  Jesus  by 
night,  being  one  of  them,) 

(51)  Doth  our  law  judge  any  man,  before  it  hear  him,  and  know 
what  he  doeth." 

Judge  Bleckley  might  further  have  said  in  his  aforesaid  censure 
of  the  present  lunacy  laws  of  the  aforesaid  "black  belt  of  lunacy," 
that  both  the  ancient  Roman  law  and  the  ancient  Jewish  law  per- 
mitted those  two  veritable  pillars  of  Hercules  of  the  absolute  rights 
of  individuals — namely  the  right  of  notice  and  opportunity  to  appear 
and  be  heard:  vide  said  Acts,  Chapter  XXV  (16)  "he  which  is  ac- 
cused have  the  accusers  face  to  face,  and  have  license  to  answer  for 
himself;"  and  again,  said  St.  John,  Chapter  VII  (51)  "Doth  our 
law  judge  any  man,  before  it  hear  him,  and  know  what  he  doeth." 

Thus  the  Jews  and  pagan  Romans  set  a  shining  example  of  law, 
justice,  and  equity  to  the  foul  falsely  alleged  laws  anent  lunacy  pro- 
cedure in  said  "black  belt  of  lunacy"  in  which  black  belt  the  State 
of  New  York  and  the  State  of  Pennsylvania  take  the  lead  for  infamy. 

Thus  the  Jews  and  pagan  Romans  set  a  shining  example  of  law, 
justice  and  equity  to  the  alleged  Christian  communities  represented 
by  the  States  making  up  said  "black  belt  of  lunacy" — albeit  Chris- 
tianity at  present  rather  under  a  cloud. 

We  advisedly  say  "albeit  Christianity  at  present  rather  under  a 


212 


legem  terrae.  It  is  a  principle  of  natural  justice  which 
courts  are  never  at  liberty  to  dispense  with,  unless  un- 
der the  mandate  of  positive  law,  that  no  person  shall  be 
condemned  unheard."  He  said  that  in  that  case  there 
was  ^'action,  trial  and  judgment  in  tAvo  days,  and  no 
previous  notice."  hi  our  practice  it  often  occurs  in  ten 
minutes.  This  practice  I  say,  as  was  said  hy  the  Loui- 
siana Court  in  Stafford,  v.  Stafford,  supra,  might  put 
"^the  loisest  man  in  the  community  under  the  control  of 
a  curator,  and  hold  him  up  to  the  loorld  as  an  adjudged 
insane." 

Both  constitution  and  statute  confer  this  power  on  the 
county  courts  as  a  jurisdiction.     Before  appointing-  the 


cloud"  since  Caiaphas  the  High  Priest,  with  the  whole  packed 
and  hostile  Jewish  Sanhedrim  at  his  back,  gave  Jesus  Christ  a 
squarer  deal  than  does  the  Supreme  Court  of  New  York  in  the 
case  of  a  person  accused  of  lunacy.  Jesus  Christ — according  to  the 
record  was  the  recipient  of  notice — summary  notice  by  arrest,  it 
is  true,  but  notice  nevertheless,  since  said  arrest  was  merely  tem- 
porary and  definite  in  duration,  to  wit,  until  the  Court  presided 
over  by  Pontius  Pilate  could  assemble.  Whereas  plaintiff's  sum- 
mary arrest  in  March,  1897,  was  neither  temporary  nor  definite, 
but  led  to  incarceration — immediate  incarceration — without  further 
intervention  of  a  court  or  opportunity  to  appear  and  be  heard — 
immediate  incarceration  in  a  cell,  which  was  only  allegedly — but 
really  illegally — inquired  into  at  the  hands  of  the  law — as  practiced 
at  this  day  and  generation  in  the  State  of  New  York — at  the  arbitrary 
caprice  of  the  aforesaid  conspirators — the  other  side — over  Uvo 
years  later,  and  only  then,  on  the  evidence,  because  said  conspira- 
tors knew,  through  said  conspirators'  agent  said  Medical  Superin- 
tendent of  The  Society  of  the  New  York  Hospital  said  Dr.  Sagauel 
B.  Lyon — that  plaintiff  was  physically  incapacitated — by  spinal 
trouble  brought  on  by  the  atrocity  of  having  been  illegally  confined 
without  trial  on  a  false  charge  for  over  two  years  in  a  madhouse 
cell — was  thus  physically  incapacitated  from  being  present  at  said 
proceedings  before  said  Sheriff's  Jury  in  June,  1899,  since  same  were 
held  over  twenty  miles  away  from  White  Plains  where  plaintiff  was 
— on  the  record-evidence — confined  to  bed  and  had  been  thus  con- 
fined for  more  than  three  weeks  at  said  time.  Jesus  Christ  was 
also — according  to  the  record — the  recipient  of  opportunity  to  appear 
and  be  heard,  since  Jesus  Christ  was  brought  into  Court. 

Therefore  the  Supreme  Court  of  New  York  afforded  plaintiff — 
both  in  said  proceedings  in  March,  1897,  and  in  June,  1899 — less 
opportunity  to  appear  and  be  heard  than  did  the  Jews  and  pagan 
Romans  afford  Jesus  Christ.  And  the  trial  of  Jesus  Christ  is  con- 
sidered, at  least  by  Christians,  as  the  vilest  instance  of  judicial 
tyranny  of  record  in  the  annals  of  Christianity  or  Paganism. 


213 


Court  must  determine  whether  or  not  the  fact  which 
alone  gives  it  power  to  act,  exists ;  that  is  whether  the 
party  is  in  any  of  the  phases  or  conditions  of  mind  to 
be  considered  insane  under  the  statute.  It  must  in- 
quire into  the  fact,  and  in  deciding  exercise  judgment, 
and  of  this  legal  investigation,  all  important  to  him, 
he  ought  to  have  notice.  He  wants  to  deny  the  very 
basis  of  the  proposed  order — his  insanity.  It  is  an  im- 
portant transaction  to  him.  Shall  he  have  no  notice 
of  it?  Am  I  told  that  the  statute  does  not  in  terms  re- 
quire notice?  I  answer  as  shown  in  Lance  v.  McCoy, 
34  W.  Va.,  416,  as  a  Circuit  Court  cannot  appoint  ^\dth- 
out,  so  by  proper  construction  of  the  Code,  neither  can 
a  County  Court.  I  answer  further,  that  a  statute  will 
not  be  construed  to  authorize  proceedings  affecting  a 
man's  person  or  property  without  notice.  It  does  not 
dispense  with  notice. 

Bishop,  Written  Law,  Nos.  25,  141. 
Chase  r.  Hathaway,  14  Mass.,  222,  224. 
Artluir  r.  State,. 22  Ala.,  61. 
Endlich,  Interpretation  of  Statutes,  No.  262. 
Booneville  v.  Omrod,  26  Mo.,  193. 
Wickham  v.  Page,  49  Mo.,  526. 

Chief  Justice  Marshall  held  void  a  judgment  of  even 
a  court  martial  imposinii  fines  on  militia  men  because 
without  notice. 

Meade   r.   Deputy   Marshal  of  Virginia   Dist.,   1 
Brock,  324  Fed.  Cas.,  No.  9,  372. 

This  statute  is  one  of  summary  proceeding. 

If  the  case  were  one  of  mere  error  or  irregularitv,  it 


214 


might  be  said  that  the  order  was  good  against  collateral 
attack,  aud  iiiiist  be  reversed  by  a  direct  proceeding; 
but  the  question  is  one  of  jurisdiction — a  want  of  au- 
thority to  make  the  order  for  want  of  jurisdiction  over 
the  person  to  be  affected.  How  can  his  property  be  af- 
fected or  title  given  the  committee  to  enable  him  to  sue 
for  it,  if  the  order  is  void  as  to  the  person?  If  he  is  not 
affected  by  it  how  is  his  property?  If  the  committee 
would  restrain  the  person  of  the  no7i  compos^,  could  he 
not  release  himself  bv  treating  the  order  as  void?  I 
cannot  see  how  the  order  of  a  clerk  fixing  the  personal 
status  of  a  person,  without  notice,  can  rob  him  of  his 
property  and  vest  title  in  another  person.  A  tribunal 
may  have  jurisdiction  of  cases  cjusdem  generis  with  the 
nmtter  involved  in  a  proceeding  before  it,  and  it  may 
have  jurisdiction  of  the  particular  matter  involved  in 
that  particular  case;  but  if  it  have  no  jurisdiction  of 
the  person,  by  service  of  process  or  appearance,  if  the 
proceeding  is  not  in  rem  it  cannot  go  on.  Though  the 
Taylor  County  Court  has  jurisdiction  to  api)oint  com- 
mittees for  insane  persons,  and  though  it  has  lawful 
jurisdiction  to  act  on  the  matter  of  the  appointment 
of  a  committee  in  the  particular  instance  of  Evan  Mor- 
gan yet  it  could  not  act  without  notice  to  him,  unless 
Ave  say  notice  was  not  required  by  law,  which  I  have 
above  sought  to  show  is  not  the  case.  A  sentence  of 
the  Court  without  hearing  the  party,  or  giving  him  an 
opportunity  to  be  heard,  is  not  a  judicial  determination 
of  his  rights,  and  is  not  entitled  to  any  respect  in  any 
other  tribunal.  Jurisdiction  is  indispensable  to  the 
validity  of  all  judicial  proceedings.  Jurisdiction  of  the 
person  as  well  as  the  subject-matter  are  prerequisites 
and  must  exist  before  a  court  can  render  a  valid  judg- 
ment or  decree,  and,  if  either  of  these  is  wanting  all  the 
proceedings  are  void.     So  the  Court  said  literally  in 


215 


Haymond  v.  (^imdeii,  22  W.  Va.,  180,  syl.  Nos.  d,  9.  So 
it  has  often  held,  as  shown  by  .ludge  Green  in  the  opin- 
ion McCoy  V.  Mc(Joy,  29  AV.  Va.,  807.  No  Court  has 
more  steadily  held  the  rule  of  necessity  of  process  or  ap- 
pearance than  this  Court,  Avhether  as  to  proceedings 
of  superior  or  inferior  Courts.  Must  there  be  a  process 
before  a  superior  Court  can  render  merely  money  judg- 
ment, and  yet  no  notice  before  a  Clerk  can  stamp  a  man 
with  insanity,  and  take  from  him  his  property  and  free- 
dom of  person?     *     *     * 

When  we  say  there  must  be  jurisdiction,  we  mean  both 
that  the  matter  must  be  within  the  jurisdiction  of  the 
Court  and  the  person  to  be  aifected,  by  service  of  notice 
upon  him,  Cooley,  Const.  Lim.,  403.  I  maintain  that 
such  action  as  the  appointment  of  a  committee  for  one 
as  insane  without  notice,  being  so  grave  in  its  effect  upon 
his  personal  status,  his  right  to  vote,  liberty  and  prop- 
erty, is  not  due  process  of  law.  It  violates  the  defining 
by  Mr.  Webster  in  the  Dartmouth  College  case,  generally 
received  as  a  proper  one  of  due  process  of  law,  that  'it 
hears  before  it  condemns.' 

The  decree  is  reversed  and  the  bill  is  dismissed,  with- 
out prejudice  to  any  other  suit  by  Evan  Morgan  or  any 
lawful  committee.  No  prejudice  against  the  collection 
of  the  debts  shall  result  from  this  decision." 

HiiicJuiiaji  V.  Nirhie.     (April  9,  1849.) 
1  Brightly's  Reports,  144. 
Note,  p.  180. 

No  one,  however,  has  a  right  to  confine  an  insane  per- 
son for  an  indefinite  period,  until  he  shall  be  restored  to 
reason,  but  upon  compliance  with  the  formalities  of  the 
law.     Colhjjx.  Jackson,  12  N.  H.  526.     *     *     ^ 

Krause,  President,  said  :     "The  6th  section  requires 


216 


the  court  to  direct  notice,  either  to  the  party  to  whom 
the  commission  shall  issue  or  to  some  near  relations  or 
friends,  who  are  not  concerned  in  the  application,  and 
the  object  beinn  to  procure  a  defense  Aviien  that  may 
reasonably  l)e  made,  it  is  obvious  that  such  as  counsel  a 
findini*  against  tlie  defendant,  or  desire  it,  are  excluded 
from  that  list  of  persons,  as  ineligible  to  stand  in  his 
stead.  For  some  purpose  or  other  this  direction  was  not 
asked  of  the  court;  and  notice  was  not  given  bv  the  com- 
missioner.        *     *     * 

Nor  was  he  himself  summoned  beforehand  or  brought 
in  at  the  time  to  be  present  at  the  examination  of  the 
witnesses,  on  whose  testimony  he  was  pronounced  in- 
capable of  exercising  the  rights  and  duties  of  husband, 
father  and  citizen.  He  A\'as  in  fact  not  present  for  any 
purpose  of  defense,  but  for  exhibition  merely — a  con- 
clusion that  is  forced  on  the  mind  by  the  whole  course 
of  conduct ;  for  the  witnesses  had  been  heard  when  he  was 
called  into  the  room;  his  desire  to  ha\e  friends  and 
counsel  to  aid  him  was  disregarded,  and  the  business 
affecting  all  his  high  interests  was  concluded  after  he 
had  been  removed.  In  cr  parte  Cranmer,  12  Yes.  Jr. 
455,  Chancellor  Erskine  says :  "the  party  must  cer- 
tainly be  present  at  the  execution  of  tlie  commission ; 
it  is  his  privilege;"  and  such  must  be  the  ccmsti'uction 
of  our  statute,  except  where,  from  the  necessity  of  the 
case,  it  is  impracticable  to  give  literal  force  and  opera- 
tion to  the  principal,  as  in  the  state  of  facts  instanced 
in  the  third  division  of  the  second  section,  bv  which  a 
commission  mav  be  executed  against  an  inhabitant  of  the 
State,  who  is  absent  from  it,  in  the  county  containing  his 
real  estate.  But  that  is  justified  upon  the  ground  of  its 
being  a  purely  beneficial  measure,  to  save  the  jiroperty 
from  impending  mischief;  and  to  prevent  oppression,  the 
court  exacts  ample  proof  that  such   is  the  object,  and 


217 


directs  extraordiiiarv  efforts  to  be  made,  by  publication 
or  otlier\vis(s  to  i-eacli  the  jjarty  with  notice. 

.\hirij  SiHiih  V.  Stcplicn  liiniiiH/diitr,  4  Mason  (  li.  1.) 
llM,  NovendH^r  Term,  1825. 

Story,  J.,  said  :  "'^ly  opinion  is  that  the  objection  is 
fatal.  The  Courts  of  Probate  have  no  right  to  put  a  per- 
son under  i;uardianship,  as  unfit  to  manage  her  affairs, 
without  notice  to  the  party,  and  (m  adjudication  on  the 
facts;  and  until  such  adjudication,  no  letters  of  guar- 
<lianshi])  can  legally  l)e  issued.  The  case  of  ChuHC  v. 
Hatha irai/  (14  Mass.  R.  222),  is  directl}'  in  point,  and 
with  that  case  I  entirely  concur." 

Wait  V.  Ma.nrcU,  16  American  Decisions,  391.  (5 
rickering,  217.) 

Parker,  V.  J.,  said:  "The  decree  of  the  court  of  pro- 
bate, granting  letters  of  guardianship,  is  void,  because 
it  does  not  appear  that  any  notice  was  given  to  the 
subject  of  it  before  the  inquisition  taken;  nor  is  there 
any  judgnu^nt  or  decree  ascertaining  that  she  was  non 
conipo.s  ^initis/^ 

In  McMunaj)  v.  Hooper,  (Ala.)  46  Am.  Dec.  280,  the 
Court  said  : 

''I  think  it  is  a  very  fundamental  principle  of  justice 
essential  to  the  right  of  every  man,  that  he  should  have 
notice  of  any  judicial  pi'oceedings  which  is  about  to  be 
had  for  the  purjiose  of  divesting  him  of  his  property  or 
the  control  of  it,  that  he  may  appear  and  show  to  them 
who  sit  in  judgment  on  his  rights  that  he  has  not  lost 
them  by  the  commission  of  a  crime,  and  that  they  should 
not  be  taken  away  from  him  by  reason  of  a  supposed  mis- 
fortune. That  he  has  a  rifjht  to  appear  before  the  jury 
and  the  c(mrt,  to  show  that  he  is  not  insane  and  that 


218 


lie  and  his  property  should  not  be  put  in  chari^e  of  an- 
other, is  self-evident  and  i.s-  dciiird  hij  no  le</al  aiitJioriti//^ 

So,  in  HiiteJiiiis  v.  Johnson,  (Conn.)  30  Am.  Dec.  624, 
the  (Jourt  said : 

"Notice  of  such  proceedings  idc  hinatico  Inquirendo) 
so  important  to  the  subject,  is  required  by  the  fniidamen- 
t<i]  jniiiciidcs  of  justice.'^ 

And  in  the  case  of  Mays,  10  Pa.  County  (Jt.  IJeports 
293,  this  language  was  used : 

''But,  in  ^^ilatever  way  we  regard  it,  tlie  necessity  for 
notice  faces  us,  and,  if  it  has  not  been  given,  the  pro- 
ceedings cannot  for  an  instant  be  maintained."' 

The  text  writers  also  enunciate  the  same  principle 
in  insanity  cases.  Thus,  in  Buswell  on  Insanity,  section 
55,  it  is  said  : 

"In  the  United  States  it  is  generallv  held  that  the  partv 
alleged  to  be  insane  has  the  right  to  have  notice,  and  to 
he  present  at  the  proceedings  instituted  for  determining 
the  issue  of  sanitv." 

And  in  Cuming  and  Gilbert  on  the  "Poor,  Insanitj', 
etc.,  Laws  of  New  York,"  at  ])age  173,  it  is  said: 

"Under  a  constitutional  government  no  person  can  be 
deprived  of  life,  liberty  or  property,  without  due  pro- 
cess of  law,  and,  therefore,  no  person  can  be  lawfully 
declared  insane  and  his  personal  liberty  permanently  re- 
strained without  formal  proceedings  and  an  opportunity 
afforded  him  to  appear  personally  and  with  witnesses 
to  refute  the  allegations  of  the  person  seeking  to  deprive 
him  of  his  liberty.'' 

But  the  verv  question  was  recentlv  considered  by  the 


219 


Appellate  Court  of  the  State  of  New  York,  in  a  case  so 
similar  to  the  oue  presented  by  plaintiff  that  it  must  be 
considered  as  conclusive.  It  was  the  case  of  The  People, 
r.r  rrl.  Fjlhahctli  Ordwaj/  v.  Ht.  Havioiir  Afij/him,  re- 
ported in  84  App.  Div. 

Elizabeth  OrdwaA'  was  induced  bv  her  fauiilv  and  her 

«  J-  A. 

friends  to  take  some  steps  to  be  confined  and  treated  for 
inebriety.  It  was  arranged  that  she  should  permit  her- 
self to  be  committed  to  St.  Saviour  Asvlum  for  one  v(iar 
for  the  i)urpose  of  ti'eatment.  Proceedings  were  had 
under  the  statute  and  she  was  committed  by  the  court 
to  St.  Saviour  for  the  period  of  one  year,  unless  sooner 
discharged  by  the  Trustees  at  that  institution.  There 
teas  no  iiotiee  of  the  proeeeding,'^  served  oit  Miss  Ordrcaii. 
She,  however,  Avas  fully  cognizant  of  the  proceedings  and 
they  were  had  with  her  consent  and  permission  and  in 
pursuance  of  the  commitment  order  she  ga\'e  herself 
up  and  entered  the  asylum. 

After  she  had  been  there  foi-  some  time,  she  decided 
that  she  desired  her  freedom  again.  The  Trustees  re- 
fused to  discharge  her  and  she  sued  out  a  writ  of 
Jiaheas  corpus.  The  Trustees  replied  by  a  return  show- 
ing the  record  of  the  proceeding  under  which  she  was 
placed  in  their  custody.  Counsel  for  [Miss  Ordway  <le- 
murred  to  the  return,  arguing  that  the  proceedings  were 
void  as  l)elng  in  contravention  to  the  constitutional  pro- 
vision re(]uiring  due  process  of  law  :  The  ccnirt  sustained 
the  demurrer, held  the  proceedings  void  and  restored  Miss 
(Ordway  to  freedom.     The  Court,  at  page  370,  said  : 

''No  matter  what  may  be  the  ostensible  or  real  pur- 
pose in  restraining  a  person  of  his  liberty,  whether  it 
is  to  punish  for  an  offense  against  the  law  or  to  protect 
the  person  from  himself  or  the  community  from  appre- 
hended acts,  such  restraint  cannot  be  made  permanent 
or  of  long  continuance  unless  by  due  process  of  law. 


220 


*  *  *  We  refer  to  tluit  procenH  by  or  under  which  a 
person  is  detained  for  a  definite  period  of  time  *  *  * 
and  not  to  that  summary  process  which,  issues  to  take  in 
custody  a  supposed  or  alleged  dangerous  or  incompetent 
person,  and  under  which  he  ma^^  be  detained  nntil  an 
'inresfi(/ati<tii  in  the  onlinani  course  of  law  may  he  had, 

*  *  *  but  where  a  person  is  confined  by  what  is  upon 
its  face  piial  process  and  by  which  he  is  consigned  to 
incarceration  or  restraint  of  his  person  by  adjudication 
for  a  long  period,  that  is  to  say,  by  a  judgment  claimed 
to  be  binding  ux^on  him,  there  is  not  due  process  of  law, 
unless  he  has  had  notice  and  a  hearing,  or  at  least  such 
a  hearing  as  implies  notice." 

Again  on  page  371,  the  Court  said  : 

"A  hearing  or  an  opportunity  to  be  heard  is  absolutely 
essential ;  we  cannot  conceive  of  due  process  of  law  with- 
out this." 

And  on  page  372  : 

"The  statute  now  under  consideration  goes  far  bevond 
the  condition  of  danger.  It  subjects  the  person  to  re- 
straint not  (liirinfj  periods  of  damjcr,  but  for  a  year  if 
the  judge  so  orders,  and  for  treatment  aiul  reformation. 

*  *  *  What  reason  exists  \\\\y  a  person  alleged  to  be 
incompetent  or  dangerous  should  not  have  an  oppor- 
tunity^ before  judgment  finally  against  him  confining  him 
for  a  long  period  of  time,  which  he  cannot  shorten  to 
contest  the  charge,  as  much  as  a  person  accused  of  crime? 
The  rights  of  one  are  as  sacred  and  inviolable  as  of  the 
other.  *  *  *  Shall  ex  parte  proof  that  would  only 
avail  to  hold  an  alleged  criminal  for  trial  be  regarded  as 
conclusive  proof  against  a  supposed  unfortunate?" 

Continuing  on  page  373,  the  Court  says: 
"Acts  of  the  Legislature  which  go  beyond  the  allow- 
ance of  temporary  confinement  and  restraint  until  trial 
or  hearing  may  be  had,  and  the  accused  person  have 


221. 


his  day  in  court  in  some  way  customary  or  adequate  to 
enable  him  to  present  his  case,  are  invalid  exercise  of 
legislative  power.  *  *  *  it  surely  cannot  be  said 
that  the  procedure  authorized  by  the  act  under  which 
this  relator  was  comnntted  and  which  created  the  wrong 
is.  due  process  of  law  simply  l)ecause  tlie  Legislature 
chose  to  authorize  that  procedure." 

And  the  Court  concludes  its  able  opinion  as  follows: 

"We  are  of  the  opinion  that  the  commitment  under 
which  this  relator  is  held  is  not  due  process  of  laAv,  and 
that  proceedings  under  the  act,  so  far  as  they  result  in 
restraint  for  a  year  or  lei^s  period  of  time  depending 
upon  the  discretion  of  those  who  i-etain  the  relator,  are 
invalid,  for  the  reason  that  no  notice  rvan  given  by  which 
she  iui(/ht  in  the  proceedings  itself  hg  immediate  inter- 
vention or  suhsecjuent  opportunity  to  intervene,  he  heard 
in  resistance  of  the  accnsation  made  against  her.'' 

Applying  the  language  of  this  decision  to  the  case 
under  consideration,  we  find  that  it  fits  every  circum- 
stance that  is  essential. 

1st.     The  proceedings  were  on  their  face  final. 

2nd.  It  was  not  temporary  in  character,  ordering  a 
commitment  for  safety  until  a  hearing — it  recites  that 
the  order  was  made  after  a  hearing. 

Srd.  There  was  no  notice  to  plaintiff  of  the  proceed- 
ing— it  was  specifically  dispensed  with — and  plaintiff 
had  no  opportunity  "in  the  proceeding  itself"  to  be  heard 
in  defense  of  his  rights." 

The  conclusion  is,  therefore,  inevitable  that  upon  the 
authority  of  the  decisions  cited  above,  and  particularly 
of  the  decision  in  the  Ordway  case,  the  proceedings  in  the 
Chaloner  case  Avere  absolutely  void  for  want  of  notice 
which  is  required  by  due  process  of  law,  provided  for  in 
the  Constitution  of  the  United  States.  And  the  mere 
fact  that  the  Legislature,  in  the  act  under  which  the 


ooo 


proceed iijiis  were  had,  provided  tor  siu-li  proceedinc;  with- 
out notice  <]oes  not  alter  the  legal  effect  of  siicli  proceed- 
iuus  when  had  iritJioiil  Dotice. 

Point  10.  The  said  Pi-oceedings  were  void  for  the 
followinjj;-  reason,  to-wit.  They  were  summary.  Lunacy 
proceediniis  in  New  York  State  are  mandatory,  in  de- 
rogation of  c(mimon  law  rights,  and  must  be  strictly 
observed  in  pursuance  of  the  statute.  While  said  com- 
mitment was  in  fact  made  to  the  Society  of  the  New  York 
Hospital,  it  was  not  so  stated;  the  term  Bloomingdale 
Asvlnm  bein<2  used,  an  institution  unknown  to  the  law. 

The  said  proceedings  were  void  for  the  following  rea- 
son : 

A  flagrant  breach  of  Section  (>0  of  Chapter  545  of  the 
laws  of  ISIK)  was  committed  in  said  proceedings,  to  wit. 
The  cover  of  said  (\)mmitnient  Papers   (Transcript  of 
Kecord,  \k   104)    contains  tlie  following,  to-wit:  "State 
of  New  York — State  Commission  In  Lunacy  Petition, 
Certificate  of  Lunacy  and  orders.     This  blank,  consist- 
ing of  five  parts,  is  furnished  by  the  State  Commission 
in  Lunacy,  pursuant  to  Section  00  of  Chapter  545  of 
the  laws  of  1890,  which,  among  other  things,  provides 
as  follows:  ''The  Conuiiission  shall  prescrihr  and  furnish 
blanks  for  siicJi  certificates  and  petitions  irhich  shall  be 
made  only  upon  such  blanksr     *     *     *     ''The  blanks 
should  be  carefully  read  and  properly  filled  out  to  in- 
sure the  commitment  of  a  patient."     After  such  a  man- 
datory  and   particularized   and   italicized   warning   re- 
garding a  regular  and  legal  form  of  procedure  in  filling 
out  said  blanks,  it  is  reasonable  to  assume  that  said 
blanks  would  in  each  and  every  case  be  so  filled  out. 
But  in  i)laintife's  case  a  gross  irregularity  occurs  three 
times.     Once  upon  the  back  of  the  cover  of  said  Com- 
mitment Papers  (p.  114).     Once  upon  line  155  therein. 


223 


and  once  Uiiuin  ii})()n  line  .'»r)0  therein.  Moreover  the  two 
hitter  <;toss  sjiid  irrejiuhirities  are  made  in  defiance  of 
italicized  niaiKhites.  In  said  first  of  said  two  instances 
— said  italicized  mandate  line  150  is  as  follows,  to  wit: 
{If  is  essenfidl  tlidf  the  official  title  of  the  institution 
shoiihl  he  corrccifif  ///srr/cr/ ) ,"  p.  !()!>.  In  accordance 
with  said  man<late  the  followinii'  shonld  have  appeared 
npon  said  line  155:  "The  Society  of  the  New  York  Hos- 
pital."" In  ])lace  of  said  offtcial  title  appears,  however, 
the  fancy  name  of  ''Bloominf/dale  Asylum,  <it  White 
Plains/'  In  said  record  of  said  two  instances  of  gross 
irregnlarity  and  italicized  mandate,  line  349  is  as  fol- 
lows, to  wit:  {''Insert,  correctly,  official  title  of  insti- 
tution.)'' Wheren])()n  we  discover  that  said  first  of 
said  two  instances,  of  gross  irregularity,  presents  a  new 
phase  of  gross  irregnlarity  in  addition  to  said  first  gToss 
irregnlarity's  original  grossness,  to  wit.  In  place  of 
finding  npon  said  line  350  ''The  Society  of  the  New  York 
Hospital,""  which,  if  law's  mandates  mean  anything, 
shonhl  have  been  there,  and,  astonnding  though  it 
sounds,  in  ])lace  of  finding  what  should  have  been  there 
if  consistencv  even  in  irregularitv  can  aid  in  showing 
an  honest  error,  to  wit,  ''Blooming dale  Asylum  at  White 
Plains/'  what  do  ire  find?  We  find  that  said  gross  ir- 
regularity, said  '' Bloom  ingdale  Asylum  at  White 
Plains/'  has,  so  to  speak,  undergone  a  metamorphosis 
taken  on  a  new  shape,  and  now  stands  forth  as  ''Bloom- 
ingdale  Insane  Asylum  at  White  Plains,  N.  Y./'  to 
which  phantom  institution,  so  to  speak,  to  which  ille- 
gally designated  concern  plaintiff  was  duly  committed, 
for  two  lines  further  down,  line  352  (p.  113),  appears 
the  following,  "Signed,  H.  A.  Gildersleeve" ;  and  on 
line  353  "Justice  Supreme  Court,  State  of  New  York." 
Incredible  as  it  sounds  said  metamorphosed  said  gross 
irregularity   said   '^'Bloomingdale    Insane    Asylum    at 


22 1 


White  Plains^  N.  Y."  upon  said  back  of  said  cover  of 
said  Commitment  Papers  experiences,  so  to  speak,  a 
second  metamorphosis,  and  now  dwindles  into  '"Blooni- 
ingdale.  White  Plains,  ISi.  Y."  If  it  is  trne,  as  said  man- 
date reads,  said  line  11,  "The  blanks  should  be  carefully 
read  and  properly  filled  out  to  insure  the  commitment 
of  a  patient, '^  and  if  it  is  furthermore  true,  as  said  man- 
date reads,  {"■It  is  essential  that  the  official  title  of  the 
institution  should  he  correctly  inserted.'')  said  line  156, 
then  it  is  also  true  that  a  failure  to  properly  till  out 
said  blanks  fails  to  insure  the  commitment  of  a  patient ; 
and,  furthermore,  it  is  also  true  that  if  it  is  essential 
that  the  official  title  of  the  institution  should  be  cor- 
rectly inserted  it  is  essential.  If  the  above  is  correct, 
it  follows  inevitably  that  said  failure  to  insure  the  com- 
mitment of  the  patient  did  fail  to  secure  said  commit- 
ment through  said  failure's  being-  in  its  nature  essen- 
tial. 

The  same  gross  irregularity  is  repeated  frequently  in 
the  Proceedings  in  1S99.  To  take  only  three  of  said  in- 
stances, which  from  the  said  instances  importance  in 
said  proceedings  stand  out  boldly.  The  said  myth  of 
"Bloomingdale"  is  passed  along  and  given  a  helping- 
hand  by  Lawyer  Candler  of  the  other  side,  in  said  pro- 
ceedings. In  said  Candler's  examination,  supra,  of  said 
Carlos  F.  McDonald,  said  Candler  says:  "Have  you 
visited  him  (plaintiff)  in  the  Bloomingdale  Asylum  for 
the  Insane?"  (Transcript  of  Record,  p.  120).  Small 
wonder  that  the  public  is  fooled,  and  regards  "Bloom- 
ingdale" as  a  public  institution  more  or  less  eleemosy- 
nary in  its  nature  when  said  Society  of  the  New  York 
Hospital  winks  at  infractions  of  the  law  regarding  the 
correct  name  of  the  institution  to  be  inserted  in  all  Com- 
mitment Papers,  and  so  sails  like  a  pirate  under  false 
colors — with   Commodore   Elbridee   T.     Gerrv    at     the 


225 


wheel  and  the  Hon.  .Joseph  Hodges  Choate^ — so  to  speak 
— first  mate. 

The  same  irreguhiritj  occurs  four  times  in  the  affi- 
davit filed  June  28rd,  1899,  with  the  Decretal  Order  by 
Egerton  L.  Winthrop,  Jr.,  of  the  said  firm  of  Jay  and 
Candler  (pp.  13G-137),  to  wit:  "John  Armstrong  Chan- 
Igp  *  *  *  f|>oiii  Bloomingdale  Asylum.*'  Again 
"the  said  John  Armstrong  Chanler  had  been  committed 
to  the  Bloomingdale  Asylum  for  the  insane."  Lastly 
"Dr.  Samuel  B.  Lyon,  the  Superintendent  of  the  Bloom- 
ingdale Asvlum  for  the  insane." 

The  same  irregularity  occurs  twice  in  the  said  decretal 
order  of  said  Judge  Henry  A.  Gildersleeve  (p.  136),  filed 
and  recorded  June  23rd,  1899,  a  certified  copy  of  which 
we  exhibit  to  wit :  "Dr.  Samuel  B.  Lyon,  the  person  in 
charge  of  Bloomingdale  Asylum."  Lastly,  "He  (said 
John  Armstrong  Chanler)  was  committed  to  the  Bloom- 
ingdale Asylum,  White  Plains." 

"It  has  been  held  that  Statutes  providing  for  the  ex- 
amination, commitment,  and  custody  of  insane  persons 
are  mandatory,  and  must  be  strictly  pursued :  Meurer's 
Appeal,  119  Pa.  St.,  115;  State  v.  Baird,  4.7  Mo.,  301; 
Territory  v.  Sheriff  of  Gallatin  County,  6  Mont.,  297,, 
iYoite  43  Am.  St.  Rep.,  531. 

Point  11.  The  Proceedings  in  New  York  City,  in 
1899,  before  a  Commission  and  a  Sheriff's  Jury  to  de- 
clare plaintiff  an  incompetent  person  in  absentia,  plain- 
tiff never  being  before  the  jury  or  represented  in  Court 
in  any  way,  were  void  in  toto,  for  they  were  without  due 
process  of  law  and  therefore  unconstitutional  for  the 
folloAving  I'easons.  (  a)  There  was  lack  of  proper  notice, 
for  plaintiff  l)eing  at  the  time  in  duress  of  imprisonment, 
illegally  confined  under  a  void  proceedings,  and  A\dth- 
out  access  to  counsel,  the  so-called  notice  was  no  notice 

(15) 


l'lm; 


at  all.*  The  Supreme  Court  of  New  York  had  in  effect 
civillv  uiurdered  ('hauler.  It  had  iu  effect  illeoally 
rendered  hiui  civillj  dead — an  insane  person  is  clviliiei- 
ntortuiis — it  had.  so  to  si)eak,  placed  him  in  his  coffin, 
and  in  the  act  of  nailinj^  down  the  lid  and  consijining 
him  to  the  tomb — the  proceedings  to  appoint  a  commit- 
tee of  his  person  and  estate — served  notice  on  his  corpse 
to  be  present  at  the  said  ceremony.  He  having  been 
rendered  physically  incapable  of  observing  said  sum- 
mons by  the  said  illegal  act  of  said  Supreme  Court  which 
said  act  had,  by  confining  him  for  two  years  in  a  mad- 
house cell,  rendered  him  foi-  the  time  bed-ridden,  as  the 
experts  in  the  pay  of  the  other  side  virtually  admit. 
Said  proceedings  in  181)9  being  in  point  of  fact  conducted 
in  plaintiff's  absence  througli  plaintiff's  said  enforced 
physical  inability  to  be  present  thereat  were  therefore 
also,  in  like  manner,  as  said  proceedings  in  1897 — truly 
and  typically  e.n  parte  and  therefore  utterly  void.  (6) 
There  ^vas  laek  of  opportuniti/  to  appear  and  he  heard. 
For  plaintiff',  upon  the  sworn  testimony  of  the  medical 
men  in  the  pay  of  the  Petitioners,  was  incapacitated 
from  coming  to  Court,  plaintiff'  l)eing  in  bed  Avith  an 
affection  of  the  spine  at  the  time  of  said  trial,  and  hav- 
ing been  so  for  more  than  three  weeks  previous  thereto. 

Said  Subsec^ubnt  Proceedin(48  to  Api-oint  a 

Committee. 

Plaintiff  was  confined  in  the  Asvlum  of  "The  Societv 
of  the  New  York  Hospital"  at  White  Plains,  New  York, 
from   March   13th,   1897,   until   May,   1899,   before  any 


*A  sinister  point  in  this  case,  and  one  whose  influence  saturates 
the  entire  proceedings  with  a  taint  of  wrong  intolerable  to  law,  is 
the  fundamental  fact  that  a  citizen  of  a  foreign  State  was  lured 
into  the  State  of  New  York,  with  a  view  to  subjecting  said  citizen 
to  the  jurisdiction  of  the  New  York  courts. 


227 


steps  were  taken  to  have  plaintiff  declared  incompetent 
and  to  have  a  coniiiiittee  of  plaintiff's  person  and  estate 
appointed.  And  it  must  be  noted  that  this  detention  was 
an  illegal  one,  absolutely  void,  that  plaintiff  was  under 

DURESS  OF  IMPRISONIMENT. 

In  May,  189!)  (  Transcript  of  Record,  p.  78),  a  petition 
was  filed  by  two  of  plaintitt"s  brothers,  Messrs.  Winthrop 
Astor  (Mianler  and  Lewis  Stuyvesant  Chanler,  afore- 
said, to  have  plaintiff  declared  an  insane  and  incompe- 
tent person  by  a  Sheriff's  jury,  and  a  committee  ap- 
pointed for  plaintiff's  person  and  estate. 

It  appears  by  the  record  of  said  subsequent  proceed- 
ings that  an  order  was  entered  on  the  9th  day  of  May, 
1899,  requiring: 

"Notice  of  the  application  prayed  for  in  said  petition 
be  given  in  the  following  manner,  a  copy  of  this  order 
and  of  the  said  petition,  aifidavits  and  notice  of  motion 
shall  be  served  upon  the  said  John  Armstrong  Chanler, 
the  alleged  incompetent  person,  personally  *  *  * 
by  delivering  the  same  to  him  in  person." 

It  was  also  provided  that  other  members  of  his  family, 
not  petitioners,  should  be  served  with  like  notice. 

Under  this  order  the  following  notice  was  issued  to 
plaintiff  ( p.  79 )  : 

"Please  take  notice  that  upon  the  annexed  petition 
and  annexed  affidavits,  a  motion  will  be  made  at  a  Spe- 
cial Term,  Part  1,  of  the  Supreme  Court,  State  of  New 
York,  held  at  the  Countv  Court  House  in  the  Borough  of 
Manhattan,  in  the  City  and  County  of  New  York,  on  the 
19th  day  of  May,  1899,  at  ten  and  a  half  o'clock  in  the 
forenoon  of  that  day,  or  as  soon  thereafter  as  counsel 
can  be  heard  for  an  order  that  the  prayer  of  the  said 
petition  be  granted,  and  for  such  further  and  other 
order  as  shall  be  proper  in  the  premises." 

This  notice  was  served  by  William  AVhite  Whittaker, 


228 


a  clerk  in  the  office  of  Messrs.  Jay  and  Candler,  as  ap- 
pears from  his  affidavit,  in  said  certified  copy  of  pro- 
ceedings 1899,  by  delivering  to  plaintiff  a  copy  thereof, 
at  said  "Society  of  the  New  York  Hospital,"  White 
Plains. 

On  the  19th  day  of  May,  1899,  the  Court  entered  an 
order  for  the  appointment  of  a  commission  de  lanatico 
inquirendo   ( Transcript  of  Record,  p.  92 ) . 

On  the  23rd  of  May,  1899,  the  appointment  of  the 
three  Commissioners  was  issued,  and  they  were  in- 
structed ''to  make  inquisition  into  the  facts  hereinbefore 
recited."  The  Commissioners  were  also  directed  to  (  pp. 
92-93) 

"cause  previous  notice  of  the  time  and  place  of  execution 
of  this  notice  to  be  given  to  the  said  -John  Armstrong 
Chanler  and  to  Doctor  Samuel  B.  Lyon,  the  person 
having  charge  and  care  of  him  *  *  *  and  that 
whenever  vou  shall  so  demand,  the  said  Doctor  Samuel 
li.  Lyon  shall  produce  before  you  and  a  jury  the  said 
John  Armstrong  Chanler  to  be  inspected  and  examined 
by  you  and  the  said  jury,  but  that  in  your  discretion  you 
may  dispense  with  the  attendance  of  the  said  John 
Armstrong  Chanler  before  you  and  the  jury  unless  the 
jurors  some  or  one  of  them  shall  require  the  attendance 
of  the  said  John  xlrmstrong  Chanler  before  the  jury." 

In  the  pursuance  of  this  order  the  three  commission- 
ers (|ua]ified  and  issued  the  following  notice  (p.  100)  : 

"Please  take  notice  that  a  commission  heretofore  is- 
sued out  of  under  and  by  order  of  the  Supreme  Court 
dated  the  23rd  day  of  ^lay,  1899,  to  inquire  whether 
John  Armstrong  Chanler  is  an  incompetent  person  and 
by  reason  of  which  infirmity  he  is  incapable  of  manag- 
ing his  person  and  property  and  to  us  directed  as  com- 


229 


missionors,  will  be  executed  at  the  County  Court  lEouse 
in  the  Borough  of  Manhattan  and  City  of  New  York 
on  the  12th  day  of  June,  1(S09,  at  four  o'clock  in  the  after- 
noon of  that  dav.*" 

By  the  attidavit  of  William  White  Whittaker  it  will  ap- 
pear that  this  notice  was  likewise  served  on  plaintiff  at 
said  "Society  of  the  New  York  Hospital,"  White  Plains, 
and  upon  said  Dr.  Lyon  at  the  same  place,     (p.  100.) 

The  commissioners  then  proceeded  on  the  12th  daA^  of 
June,  1899,  to  inquire  into  plaintiff's  mental  condition. 
Plaintiff'  was  not  present  at  the  proceedings  and  the  at- 
torneys for  the  petitioners  stated  that  they  would  not 
produce  him  unless  ordered  so  to  do  by  the  commis- 
sioners,    (pp.  101-102.) 

The  commissiontn-s  did  not  at  auv  staire  of  the  in- 
vestigation  order  plaintiff  to  be  produced,  nor  was  there 
any  person  present  in  plaintiff's  behalf  authorized  in  any 
way  to  represent  plaintiff.  Doctor  Lyon,  who  testified, 
stated  distinctly  that  plaintiff  did  not  wish  him  (Lyon) 
to  represent  him  in  the  proceedings  (p.  115).  He  stated 
that  said  plaintiff'  was  physically  incapacitated  from  be- 
ing present  before  the  jury.  And  upon  further  examina- 
tion said  Dr.  Lyon  stated  that  plaintiff  would  be  tem- 
porarily injured  mentally  and  physically  by  his  produc- 
tion before  the  iurv. 

Up(m  this  statement  and  similar  statements  by  the 
other  physicians  who  testified  the  jury  brought  in  its 
verdict  that  John  Armstrong  Chanler  A^as  incompetent 
to  manage  his  person  or  his  affairs  (p.  13G).  Plaintiff 
was  never  before  the  commissioners  or  the  jury.  This 
is  the  statenuMit  of  the  facts  of  the  second  proceedings 
and  the  question  arises  as  to  the  legal  effect  of  the  same. 

We  have  seen  in  our  examination  of  the  first  proceed- 
ings that  notice  to  the  alleged  insane  person  of  any  pro^ 
ceedings  permanently  affecting  his  liberty  or  property. 


230 


an  opportunity  to  he  heard  in  defense  of  his  rights,  are 
essential  features  of  that  due  process  of  law  that  is  re- 
(juired  by  the  Constitution  of  tlie  United  States. 

Undoubtedly  said  second  proceeding's  did  effect,  and 
permanentlij,  the  liberty  and  property  of  plaintiff.  It 
was  a  final  proceeding. 

Undoubtedly  the  notice  that  was  served  upon  plain- 
tiff advised  plaintiff"  of  said  second  proceedings. 

It  now  remains  to  examine  the  (piestion,  NA'hat  is  the 
effect  of  such  notice  when  given  to  a  person  under  duress 
and  who  is  not  actually  produced  at  the  hearing? 

OrrORTUNlTY    TO    BE    HEARD. 

The  wliole  purpose  of  notice,  as  reciuired  by  the 
statutes,  and  by  tlie  decisions  under  the  due  i)rocess 
clause  of  the  Constitution,  is  to  give  opportunity  to  the 
defendant  or  respondent  to  appear  and  defend  his  rights. 
The  plain  language  of  the  text-writers  and  decisions  of 
courts  is  that  the  defendant  in  any  proceeding  is  entitled 

to   NOTICE   AND   AN   OPPORTUNITY   TO   BE   HEARD. 

The  above  proposition  is  sustained  by  the  following 
excerpts  from  five  leading  cases,  as  well  as  by  the  follow- 
ing excerpt  from  a  full  note  on  ''Due  Process  of  Law  as 
applied  to  Insane  persons."'  43  American  State  Reports, 
531.  Followed  by  numerous  other  excerpts  from  leading 
cases. 

In  Brown  v.  Board  of  Leree  Comniissioners,  50  Miss. 
468,  Simrall,  J.,  said :  "The  term  under  consideration 
(due  process  of  law)  refers  to  certain  fundamental  rights 
whicli  that  system  of  jurisprudence  of  which  ours  is  a 
derivative  has  always  recogui^jed.  If  aiti/  of  these  are  dis- 
regarded in  the  proceedings  by  which  a  person  is  con- 
demned to  the  loss  of  life,  liberty  or  property,  then  the 


231 


deprivation  lias  uot  been  by  'due  process  of  law'." 
Am.  and  En<>.  Eiu-y.  of  Law,  j).  2\){\,  u.  2. 

u*  *  •::•  ^i^g  most  satisfaetor}^  definition  (due  pro- 
cess of  law)  is  tliat  it  secures  to  every  one  the  right 
to  have  notice  of  any  proceeding  by  which  his  rights  of 
life,  liberty  or  property  may  be  affected,  and  to  be  af- 
forded an  opportunity  to  defend  protect  and  enforce  such 
rights  in  an  orderly  proce(Kling  adapted  to  tlie  nature 
of  the  case." 

Am.  and  Eng.  Ency.  of  Law,  p.  296,  and  ca.  ci. 

Joliii  I  J.  lirtJiva,  Adiii'r.  of  Husaiuiah  liohiiisou,  dec'd, 
against  Alexander  AIcLennoii.  23  North  Carolina  Re- 
ports 1840,  page  523,  526-7.  (Iredells  Law  Vol.  1.) 
( supra ) . 

The  Court  held  :  "It  is  true,  that  the  lunatic  is  entitled 
to  be  present  before  the  jui-y;  and  if  they  deny  his  right, 
such  denial  would  be  suffi<'ient  cause  for  setting  aside  the 
inquisition. 


J? 


Staford  v.   Stafford,  6  Martin's   Hep.  643.    (supra.) 

Porter,  J.,  said :  ''But  if,  on  the  contrary,  the  petition 
of  interdiction  is  solicited,  from  malice,  or  through 
error,  against  one  of  sound  mind,  it  is  not  perceived  by 
us  why  the  proceedings  should  be  carried  on,  without 
his  knowledge.  So  far  from  it,  that  we  think  it  indis- 
pensable he  should  ha^^e  the  opportunity  afforded  him  to 
hear  and  confront  those,  who  by  their  evidence  are  about 
to  deprive  him  of  all  control  over  his  actions,  and  take 
from  him  the  enjoyment  of  his  property.  The  defendant 
had  a  right  to  demand  in  the  appellate  ccmrt,  legal  proof 
of  her  insanity,  and  that  legal  proof  was  not  furnished 
by  testimony  taken  out  of  her  ]iresence.     The  principles 


232 


on  wliicli  this  case  lias  been  supported  might  phice  the 
wisest  man  in  the  community  under  the  control  of  ;i 
curator,  and  hold  liim  up  to  the  world  as  an  adjudged 
insane." 

///   Re  William   M.  Bryant,  3  Mackey,   4S9.    {supra.) 

Counsel  said  :  "Due  process  of  law,  as  defined  by  the 
courts  and  by  the  law-writers,  does  not  mean,  the  certi- 
ficate of  two  physicians  and  the  recjuest  of  a  sister.  It 
means  laws  which  hear  before  they  condemn,  and  render 
judgment  only  after  trial.  It  cannot  be  a  police  regula- 
tion, independent  of  the  judiciary  and  entirely  under  the 
control  of  the  Legislature.  This  would  enable  the  Legis- 
lature to  deprive  the  citizen  of  his  liberty,  without  the 
intervention  of  the  judiciary  or  any  other  department  of 
the  government."    4  AVlieat,  519.     *     *     * 

the  (\mrt  of  Maryland  ((liancellor  Bhuidi  said: 
^'Generally  and  techiiicall3^  speaking,  those  only  are  con- 
sidered lunatics  who  have  been  so  found  and  returned  5 
without  an  inquest  and  return  thereon,  no  one  can  be 
judicially  treated  as  a  lunatic  and  be  debarred  of  his 
liberty,  or  have  the  management  of  his  projierty  taken 
from  him.  The  power  to  divest  a  citizen  of  his  per- 
sonal freedom  and  of  his  jn-operty,  is  one  of  the  most 
extraordinary  and  delicate  nature ;  and  should,  therefore, 
never  be  exercised  without  observing  every  precaution 
re(juired  by  tlie  law."  Rebecca  Owings"'  C'ase,  1  Bland 
V\\.  Rep.  'I'M).     ^     ^     ^ 

Mr.  Justice  James  said  :  ''*  *  *  One  of  the  terms 
for  admission  is  that  two  phvsicians  shall  certifv  to  the 
insanity  of  the  party.  But  that  does  not  do  away  with 
the  necessity  of  a  proper  judicial  ascertainment  of  the 


fact  of  insanity.  The  provision  for  the  physician's  cer- 
titicate  only  conteniphites  the  fact  that  a  person  may 
have  been  found  insiiue  by  a  jury  on  in(|uiry,  and  yet 
may  liave  become  sane  again,  and,  therefore,  the  certi- 
ficate is  to  show  that  the  insanity  has  not  ceased.  As  a 
matter  of  interpretation,  tlie  statute  is  merely  permis- 
sive.  It  gave  no  power  to  seclude  a  person  in  inrita  who 
has  not  been  judicially  found  to  l)e  insane.     *     *     * 

"There  must  be  a  regular  ndjudication  of  the  question 
by  due  i)rocess  of  laAV,  without  which  even  the  Chancellor 
cannot  act ;  and  due  process  of  law  in  establishing  the  in- 
sanity of  a  person  has  long  been  declared  to  be  by  in- 
([uiry  through  a  jury.     *     *     * 

"The  deprivation  of  the  liberty  of  a  citizen  upon  the 
ground  of  lunacy  is  a  matter  of  ymy  grave  importance, 
because  it  may  easily  happen  that  for  fraudulent  pur- 
poses, perhaps  with  a  view  to  deprive  a  person  owning 
property  of  his  control  over  it,  a  perfectly  sane  num 
might  be  sent  to  an  asylum  by  his  relatives,  upon  a  cer- 
tificate of  two  physicians,  and  be  illegally  confined  there 
for  years." 

Due  Piocess  of  Law  as  Applied  to  Insane  Persons,  48 
American  State  lieports.  531.      (Note.) 

It  is  a  fundamental  principle  of  both  State  and  Na- 
tional Constitutional  Law  and  that  no  man  shnll  be  de- 
prived of  "life,  lil)erty  or  property"  witliont  "due  pro- 
(  ess  of  law,"  and  under  the  express  provision  of  the  Four- 
teenth AnuMidment  to  the  Constitution  of  the  United 
States,  no  State  shall  deny  "to  any  person  within  its 
jurisdiction  the  ecpial  protection  of  laws."  Tlie  right 
of  personal  liberty  is  thus  jealously  guarded  by  consti- 
tutional law,  aiuJ  ire  arc  nnairarr  of  (iiit/  dislinction 
hctirccti  the  ciril  rljihis  of  a  .sane  person,  and  thof^e  of  an 


234 


iiisaiK'  siiJtjccf  of  tJie  gorrriuneiil.  Nor  sluiil  there  be. 
an}^  Person)^,  fJioiKjli  insane,  are  still  huitian  beings,  and 
laws  n^hich  provide  [or  their  commitment  to  hospitals 
for  proper  care  and  treatment,  mark,  it  is  said,  the  vast 
difference  between  civilized  free  people  and  a  savage 
nation.  Such  laws  are  coiiiinou,  but  it  must  be  observed 
in  couDectioii  with  theui,  that  all  power  ovei'  the  per- 
son is  liable  to  abuse.  The  deprivation  of  the  liberty 
of  a  citizen  upon  the  charge  of  insanity,  is  a  matter  of 
very  grave  importance,  because  it  man  easilg  happen  that 
for  fraudulent  purposes,  perhaps  with  a  view  to  de- 
prive a  person  owning  pro  pert  g  of  his  control  over  it  a 
perfecthj  sane  man  mag  be  sent  to  an  asglum  bg  his  re- 
latives, upon  cevtificatcs  of  phgsicians  merelg,  and  be  il- 
legallg  confined  there  for  gears.  The  civil  rights  of  in- 
sane persons  do  not  seem  to  have  been  often  adjudicated 
bv  the  Courts,  and  a  close  search  for  authorities  reveals 
the  facts  that,  since  the  ratification  of  the  Fourteenth 
Amendment,  in  July,  1S68,  its  doctrines  as  applied  to 
vsuch  persons  have  seldom  been  defined.  Enoii(/h  is  glean- 
ed from  the  authorities,  however,  to  show  tliat  insane 
persons  It  are  rights  that  the  mere  e.mstence  of  the  fact 
of  insanitg  does  not  take  awag  or  abridge  the  rights  of 
a  citizen,  and  tliat  a  person  charged  with  insanitii  can- 
not be  deprived  of  Jiis  civil  lights  without  the  foimali- 
ties  prescribed,  bg  hiw.     *     *     * 

Commonwealth  v.  Kirkhride,  2  Brewst.  400,  419 ;  and 
it  has  been  held  that  statutes  providing  for  the  exami- 
nation, commitment  and  custody  of  insane  persons  are 
mandatory  and  must  be  strictly  pursued ;  Meurers  Ap- 
peal, 119  Pa.  St.  115:  »S7ff/r  v.  Baird,  47  :*Io.  301;  Terri- 
torg  V.  Sheriff  of  (lallatin  Count g,  6  Mont.  297.  If 
"due  process  of  law''  means  the  regular  and  orderly 
course  of  judicial  proceedings  in  the  administration  of 
justice  it  would  also  seem  clear  that  a  determination  of 


235 


insanity  is  not  coiu-lnsivc,  witliout  the  person  cliari^od 
with  being  insane  has  had  notice  and  opportunity  to  be 
lieard  either  in  person  or  by  counsel,  an  opportunity  to 
produce  witnesses,  and  to  confront  those  seekinj^  his 
retirement  to  an  asylum  or  hospital,  and  in  general  to 
make  whatever  defense  may  be  justitied  by  the  circum- 
stances of  the  case.     *     *     * 

In  the  class  of  cases  under  consideration  "due  pro- 
cess of  law"  undoubtedly  means,  '-'in  the  due  course  of 
legal  proceedings,  nccoidiug  to  those  rules  and  forms 
which  have  been  established  and  for  tlie  protection  and 
private  rights";  Biinlick  v.  People,  149  111.  (300;  41  Am. 
St.  Rep.  329.  It  means,  at  least  some  legal  procedure, 
in  which  the  person  proceeded  against,  if  he  is  to  be  con- 
cluded thei'eby,  shall  have  an  opportunity  to  defend  him- 
self: Doyle  Petitioner,  16  E.  T.  537;  27  Am.  St.  Rep. 
759.  For  example,  a  state  statute  which  authorizes  the 
placing  of  insane  persons  in  certain  hospitals  or  asylums 
within  the  State  by  their  parents,  guardians,  relatives 
or  friends,  or  if  paupers,  by  the  overseers  of  the  poor, 
upon  certificates  of  their  insanity,  made  by  two  prac- 
ticing physicians  of  good  standing,  and  which  provides 
that  when  placed  in  hospitals  or  asylums  they  may  be 
law^fully  received  and  detained  therein,  until  discharged 
in  one  of  the  modes  provided  in  the  statute,  where  such 
statute  does  not  provide  a  procedure  by  Avhich  the  person 
confined  can,  as  of  right,  defend  himself,  is  void,  being  in 
conflict  with  the  due  process  clause  of  the  naticmal  con- 
stitution :  Doyle,  Petitioner,  16  R.  I.  537 ;  27  Am.  St. 
Rep.  759. 

The  arrest  of  a  person  upon  the  chari/e  of  insanity  for 
the  purpose  of  confimng  or  committing  him  in  an  insane 
asylum  is,  strictly  speaking^  not  an  arrest  in  either  a 
criminal  or  civil  proceeding,  hut  is  one  siui  generis,  and 
ought  not,  in  this  day  of  regard  for  personal  liberty, 


23G 

to  he  (tUoircd  otJicnrisc  flnni  upon  information  on  oathy 
and  (III  order  made  directiny  the  aJlef/ed  lunatic  to  he 
brou(/ht  Jx'fore  the  Court  for  examination.     *     *     * 

All  reason  in  favor  of  confinement  without  legal  in- 
vestigation assumes  the  person  to  be  insane.  The  ques- 
tion of  insaniti/  is  the  rery  one  to  he  adjudicated.  The 
question  as  to  whether,  in  doubtful  eases,  an  inquisition 
to  determine  the  insanity  of  a  person  is  a  prerequisite 
to  his  confinement  in  an  asylum  came  up  in  the  case  of 
Van  Deusen  r.  Newcomer,  40  Mich.,  90. 

The  (V)urt  was  equally  divided,  two  of  the  Justices 
holding  that  it  was  necessary,  and  two  of  them  that  it 
was  not.     In  this  case,  Mrs.  Newcomer,  the  defendant- 
in-error,  being  at  the  i)assenger  house  of  the  Michigan 
Central  Railroad  at  Albion,  was,  on  October  1st,  1894, 
forcibly  taken  and  put  aboard  the  cars  of  that  railroad 
and  removed  to  the  Michigan  Asylum  for  the  Insane 
at  Kalamazoo,  where  she  was  restrained  of  her  liberty 
until   August   4th   following.      The   persons   chiefly   in- 
strumental in  procuring  this  confinement  were  her  son- 
in-law  and  his  mother,  with  whom  she  had  difficulty, 
but  her  daughter  gave  consent.     A  person  having  no 
more  legal  authority  than  that  which  might  be  claimed 
for  any  citizen  accom])anied  her  on  the  cars  and  to  the 
asylum.     The  reason  assigned  for  removing  Mrs.  New- 
comer to  the  asylum  was  her  insanity.     There  had  been 
no  judicial  finding  of  the  fact,  and  it  was  not  made  to 
appear   that   there   were   any   such    manifestations    of 
mental   delusions  as  indicated  danger  to  others.     The 
plaintiff -in-error   was,   at  that   time,   in   charge  of  the 
asylum,  and  he  received  and  detained  Mrs.  Newcomer 
in  the  full  belief  that  she  was  insane.    It  was  not  shown 
that   the   medical   and   other   assistants  in   the   asylum 
believed  her  to  4)e  insane  while  she  remained  there.    On 
being  discharged   from    the    asylum    Mrs.    Newcomer 


237 


bi-ouiilit  suit  for  false  iuipi-isoiiiiieiit,  aud  recovered  six 
thousaud  dollars  daniaoes.     Mrs.    Newcomer    claimed 
never  to  have  been  insane  at  all,  and  the  contest  in  the 
Court  below  was  mainly  over  the  question  of  fact.     The 
defendant's  theory  was  that  the  restraint  of  insane  per- 
sons in  asylums  is  lawful,  and  being'  lawful,  the  placing 
of  them,  whether  for  their  own  benefit  or  for  the  pro- 
tection of  others,  is  in  itself  ''due  process  of  law,"  even 
in   the  absence  of  any  judicial   investigation   into   the 
question  of  sanity.     While  this  theory  urns  approved  by 
tiro  of  the  Justices,  it    was    disapproved    by    Justices 
Cooley  and   Campbell.     The  former,    in     his    opinion, 
pointed  out  difficulties   iii  proceedinfi   ivithout   judicial 
inquiry,  showiny  thut  the  law  should  not  tolerate  the 
forcible  takiny  and  detention  of  one  in  an  insane  asylum 
upon  the  mere  assertion  that  he  is  mentally  unsound ; 
that  secret  inrestif/ations  into  cases  of  this  character 
should  be  frowned  do  urn,  that  safety  lies  in  the  pub- 
licity of  the  proceedings;  and  that  while  it  is  no  doubt 
true,  a  public  trial  of  the  fact  of  insanity  would  be  more 
or  less  excitiny  and  disturbiny  to  a  miiid  already  in  a 
diseased  or  abnormal  condition,  it  is  by  no  means  cer- 
tain that  the  consequences  would  be  more  serious  than 
those   likeljf  to  follow  from    the  sudden  arrest  or  the 
removal  for  confinement  in  the  asylum  of  a  person  who 
believes  himself  to  be  perfectly  sane.     ^'An  insane  per- 
son," said  the  astute  Justice,  ''■does  not  necessarily  lose 
his  sense  of  justice  or  his  right  to  the  protection  of  the 
law:  and  when  he  is  seized  without  warning  and  ivith- 
out the  hearing  of  those  whom  he  might  believe  would 
testify  i)i   Jiis  behalf.  <ind  delivered  helpless    into    the 
hands  of  strangers,  to  be  dealt  with  as  they  may  decide 
within  ilic  limits  of  a  large  discretion,  it  is  impossible 
that  he  .should  not  feel  keenly   the  seeming  injustice  and 
lawlessness  of  the  proceeding.'^     ^'Nothing  but  actual  in- 


238 


sanity,"'  said  Camphell,  f\  J.,  ''irill  authorise  the  seclu- 
sion of  one  tcho  makes  knoivn  his  objections,  and  claims 
a(/(iiiist  reception.  If  no  objection  is  wade  by  a  sane 
person  to  his  own  seclusion  he  camiot  complain  of  it 
afterward.  The  (iiithorities  are  uniform  that  there  must 
be  consent  or  actual  insanity"  (Van  Densen  r.  New- 
comer, 40  Mich.,  90,  142 ;  Anderson  v.  Burrows,  4  Car. 
&  P.,  210;  Eex  r.  Turlington,  2  Burr.,  1115;  Hall  v. 
Semple,  3  Fost.  &  F.,  337;  Fletcher  r.  Fletcher,  I  El.  & 
E.,  420;  Look  v.  Dean,  108  Mass.,  116 ;  11  Am.  Rep.,  323 ; 
Colby  V.  Jackson,  12  N.  H.,  526). 

Insanity  has  a  multitude  of  forms,  and  while  a  dan- 
gerous  maniac  may  be  restrained  temporarily,  even  by 
a  private  citizen,  without  warrant,  until  he  can  be  safely 
released  or  arrested  upon  legal  process,  or  committed  to 
an  asylum  under  legal  authority,  this  is  not  the  case 
in  the  milder  forms  of  insanity,  and  even  the  desire  to 
promote  the  welfare  of  the  unfortunate  individual  does 
not  justify  an  arrest,  for  nothing  is  more  harmless  than 
some  of  the  milder  forms  of  insanity.  The  right  of  per- 
sonal liberty  is  deemed  too  sacred  to  be  left  to  the  deter- 
mination of  an  irresponsible  individual,  however  con- 
scientious. The  law  gives  insane  persons  the  safeguards 
of  legal  proceedings,  and  the  care  of  responsible  guard- 
ians (Kelcher  v.  Putnam,  60  N.  H.,  30;  48  Am.  Rep., 
304). 

It  has  been  held  that  a  commission  to  examine  a  per- 
son alleged  to  be  an  imbecile,  etc.,  issued  without  the 
requisite  notice,  and  neither  preceded  nor  followed  be- 
fore judgment  by  the  appointment  of  a  guardian  ad 
litem,  is  not  aided  by  the  presence  of  the  imbecile  and 
his  representatives  by  counsel,  even  when  the  counsel 
gives  his  consent  to  the  judgment  appointing  the  giiard- 
ian,  it  appearing  that  the  commission  issued  one  day 
was  executed  the  next,  and  that  the  judgment  appoint- 


239 


ing  the  guardian  followed  iin mediately.  "The  object  of 
notice/-  it  is  said,  "is  that  there  may  be  due  warning 
to  make  objection  for  legal  cause  to  the  commission  or 
any  of  the  Commissioners  as  well  as  to  prepare  for  ad- 
ducing evidence  on  the  main  question''  (Morton  v.  Sims, 
64Ga.,  298). 

"We  have  always  understood  that  no  judgment 
of  a  Court  is  supported  by  due  process  of  law  if 
rendered  without  jurisdiction  of  the  subject-mat- 
ter and  notice  to  the  party,  but  some  of  the  Courts 
have  not  been  over  strict  in  applying  the  doctrine 
of  notice  to  cases  of  insanity.  The  very  object 
of  requiring  notice  to  be  given  to  a  party  charged 
with  insanity  or  of  recjuiring  him  to  be  produced 
in  open  Court  where  possible,  would  seem  to  be 
designed,  to  prevent  fraud  in  the  procuring  of 
verdicts  of  insanity  without  affording  the  defend- 
ant an  opportunity  of  being  heard.     *     *     * 

^' Attempts  by  interested  persons  to  get  control 
of  the  person  and  property  of  another  by  the  aid 
of  lunacy  proceedings,  or  proceedings  on  the 
ground  of  Jtabitual  dru?ikcnness  are  not  infre- 
quent, and  no  precaution  should  be  omitted  which 
may  apprise  the  party  of  the  proposed  action,  and 
enable  him  to  appear  and  defend.  The  authori- 
ties and,  text-writers  assume  that  the  party  pro- 
ceeded against  should  have  notice  of  the  time  and 
place  of  executing  the  commission.'' 

Statutes  requiring  a  party  charged  with  insanity  to 
be  produced  in  open  court,  when  possible,  are  designed 
to  prevent  fraud  in  the  procuring  of  verdicts  of  insanity 
without  affording  the  defendant  an  opportunity  of  being 
heard :  Fiscus  v.  Turner,  125  Ind.  46,  ibid. 


240 


Remedies  *  *  *  One  illegally  committed  as  an 
insane  person  may  move  to  set  aside  the  inquisition  for 
insufficiency  of  the  evidence  or  other  material  matters: 
hi  re  Perrine,  41  N.  J.,  409 ;  or  he  may  be  discharged  on 
habeas  corpus:  Territory  \.  Hherijf  of  Gallatin  County, 
6  Mont.,  297;  Doyle  Petitioner,  16  R.  I.  537;  27  Am.  St. 
Rep.  759.  Or  an  action  for  damages  will  lie  for  a  ma- 
licious prosecution  on  a  charge  of  insanity  which  results 
in  committing  to  an  asylum  one  who  is  not  insane.  The 
order  of  commitment  in  such  a  case  is  not  conclusive 
evidence  against  the  plaintiff  of  his  insanity  at  any  time, 
or  of  probable  cause  for  the  prosecution:  Kellogg  v. 
Cochran,  87  Cal.  192.  In  an  action  by  such  a  person, 
for  false  imprisonment  th(^  l)roadest  latitude  should  be 
allowed  in  showing  the  jury  what  the  patient  said  and 
did,  and  how  he  appeared  when  in  the  asylum,  as  facts 
bearing  on  the  question  of  his  sanity :  Van  Deusen  v. 
Newcomer,  40  Mich.,  90.  The  defendant  in  a  lunacy  pro- 
ceeding may  personally  appeal  from  a  judgment  declar- 
ing him  to  be  a  person  of  unsound  mind:  Cuneo  v.  Bes- 
soni,  63  Ind.,  524. 

Confinement  upon  Charge  of  Insanity  After  Acquittal 
of  Crime  on  Ground  of  Insanity.  *  *  *  a  statute 
providing  for  the  confinement  in  the  insane  hospital  of 
the  State  prison  of  persons  acquitted  of  murder  or  other 
felony  on  the  ground  of  insanity,  until  discharged  by 
the  governor  on  receiving  the  certificate  of  the  trial 
judge  and  the  medical  superintendent  of  the  State  in- 
sane asylum,  upon  an  examination  made  by  them,  after 
being  duly  summoned  for  that  purpose  by  the  prison  di- 
rectors, that  the  prisoner  is  no  longer  insane,  has  been 
condemned,  not  only  upon  the  ground  that  it  fails  to 
furnish  adequate  means  for  the  enforcement  of  the  rem- 
edy provided,  against  the  restraint  being  continued  be- 


241 

yond  the  necessity  which  alone  can  justify  it,  but  also 
upon  the  ground  that  it  phiinly  viohites  the  constitu- 
tional safeguard  against  restraints  of  personal  liberty 
without  "due  process  of  law/'  the  ])roceedings  contem- 
plated by  it  being  not  only  inquisitorial  and  ej?  parte, 
but  incapable  of  being  set  in  motion  except  at  the  will 
of  the  prison  directors,  who  would,  therefore,  practically 
control  the  liberty  of  the  person :  Underwood  v.  People,. 
32  Mich.,  1 ;  20  Am.  Rep.,  633. 

State  V.  Billings  (55  Minnesota,  467,  43  Am.  St.  Rep.,. 
525,  January,  1894). 

Collins,  J.,  said : 

'^'il/r.  Webster's  exposition  of  the  words  'law  of 
the  land'  and  'due  process  of  law;  viz. :  'The  gen- 
eral lato;  a  law  which  hears  before  it  condemns; 
which  proceeds  upon  inquiry,  and  renders  judg- 
ment only  after  trial' — was  quoted ;  and  then  the 
Court  went  on  to  say  that,  in  judicial  proceedings, 
'due  process  of  law'  requires  notice,  hearing  and, 
judgment.  These  loords,  said  the  Court,  do  not 
mean  anything  which  the  Legislature  may  see  fit 
to  declare  to  be  'due  process  of  law,'  for  there  are 
certain  fundamental  rights  which  owr  system  of 
jurisprudence  has  alivays  recognized,  which  not 
even  the  Legislature  can  disregard,  in  proceedings 
by  which  a  person  is  deprived  of  life,  liberty  or 
property,  and  one  of  these  is  'notice  before  judg- 
ment in  all  judicial  proceedings.'     *     *     * 

"But  it  may  be  stated  generally  that  due  pro- 
cess of  law  requires  that  a  party  shall  be  prop- 
erly brought  into  Court  and  that  he  shall  have  an 
opportunity  when  there,  to  prove  any  fact,  which, 

(16) 


242 


according-  to  the  Constitution,  and  the  usages  of 
the  common  law,  would  be  a  protection  to  him  or 
to  his  property  (People  v.  Board  of  Supervisors, 
70  N.  Y.,  228).  Due  process  of  law  requires  an 
orderly  proceeding  adapted  to  the  nature  of  the 
case  in  which  the  citizen  has  an  opportunity  to  be 
heard,  and  to  defend,  enforce,  and  protect  his 
rights.  A  hearing,  or  an  opportunity  to  be  heard, 
is  absolutely  essential.  'Due  process  of  law' 
without  these  conditions  cannot  be  conceived 
(Stuart  V.  Palmer,  74  N.  Y.,  183,  30  Am.  Rep., 
289). 

*'//  follofrs-  ilidi  (mil  metliod  of  procrdiiir  irhich 
a  L<<iliilaturc  maif,  in  the  iiiicontroJJcd  rj-crcise  of 
jY.S'  power,  sec  fit  to ^  enact,  hariu<i  fcjr  iti^  pitr- 
poHC  the  dcprivuMou  of  a  person  of  his  life,  liherty 
or  property,  is  in  no  sen.se  the  process  of  law  de- 
signated and  imperatively  required  by  the  Con- 
stitution. And  while  the  State  should  take  charge 
of  such  unfortunates  as  are  dangertms  to  them- 
selves and  to  others,  not  only  for  the  safety  of 
the  public,  but  for  their  own  amelioration,  due 
regard  must  be  had  to  the  forms  of  law  and  to 
personal  rights.  To  the  person  charged,  loith  he- 
ing  insane  to  the  degree  requiring  the  interposi- 
tion of  the  authorities  and  the  restraint  pro-, 
vided  for,  there  nnist  J)c  given  notice  of  the  pro- 
ceeding, and  also  an  opportunity  to  be  heard  in 
I  lie  tribunal  irhich  is  to  pass  judgnienf  niton  his 
right  to  Ivis  personal  liherty  in  the  future.  There 
must  be  a  trial  before  judgment  can  be  pronounced 
and  there  can  l)e  no  proper  trial  unless  there 
is  guaranteed  the  right  to  produce  witnesses  and 
sul)mit  evidence.  The  (juestion  here  is  not  whether 
the  tribunal  may  proceed  in  due  form  of  law,  and 


24:i 


with  some  rejiard  to  the  rights  of  the  person  be- 
fore it,  l)ut,  rather  is  the  rujht  to  have  it  so  pro- 
ceed ahsotiitelij  secured?  A.nj  statute  havings  for 
its  object  the  deprivation  of  the  liberty  of  a  person 
cannot  be  upheld  unless  this  right  is  secured,  for 
the  object   may  be  obtained   in   defiance  of  the 

Constitution  and  without  due  process  of  law. 
*     *     * 

'^That  it  has  opened^  the  door  to  wromj  and  in- 
justice to  the  making  of  very  serious  and  unwar- 
ranted charf/es  against  others  hij  wholly  irre- 
sponsible and  evil-minded  persons,  is  evident,  al- 
though the  method  of  instituting  the  proceedings 
does  not  affect  the  validity  of  the  act.     *     *     * 

''The  commission  issues  to  the  examiners,  and 
they  are  authorized  and  directed  to  'examine'  the 
alleged  lunatic.  *  *  *  /f  (the  exaniination) 
may  he  formal  or  informal,  as  they  choose,  and 
the  person  under  anamination  may  not  have  the 
slightest  idea  that  he  is  the  subject  of  inquiry 
or  inrestigation.  The  examination  may  be  at  any 
place  where  the  subject  can  be  found,  or  at  a 
place  convenient  for  the  examiners.  It  may  be 
public  or  private,  and  judging  from  the  questions 
found  in  the  form  to  be  answered  by  the  examin- 
ers, it  )))ay  consist  slmpli/  i)i  observing  the  alleged 
lunatic  and  in  mul-iiig  inf/iiirics  of  Jiiin  or  his  ac- 
quaintances, or,  for  that  matter  accepting  com- 
mon street  gossip.  To  illustrate:  In  the  certi- 
ficate signed  by  the  physicians  who  made  this 
examination  is  the  answer  to  a  most  important 
question,  viz. :  'Has  the  patient  shown  any  dis- 
position to  injure  others?'  The  answer  is  'Yes. 
It  is  reported  that  she  threatens  to  shoot,  carries 
firearms,  and  did  shoot  at  one  person  passing,  not 
knowing  whom.' 


244 


"AVlien  this  examination,  of  ivhicJi  the  subject 
need  not  be  iiifoniied,  and,  in  which  he  takes  no 
part,  is  completed,  the  examiners  are  required  to 
make  a  verified  \vritten  report  and  recommenda- 
tion, and  on  this  the  officer  may  commit  witli- 
out  any  other  or  further  act,  except  that  lie  must 
see  the  subject,  either  in  or  out  of  Court,  inform- 
ing him  fully  of  the  proceedings,  and  must  also 
notifj^  the  County  attorney  of  what  is  going  on, 
Islot  until  after  the  examination,  report  and  recom- 
mendation, upon  which  the  officer  may  commit, 
if  he  so  chooses,  need  there  be  any  notice  whatso- 
ever to  the  person  charged  with  being  a  proper 
subject  for  the  insane  asylum,  nor  need  the  County 
attorney  be  advised  of  the  proceeding.  If  personal 
rights  are  of  any  co)isequence,  and  if  they  need 
protection  at  any  time,  such  notice  should  pre- 
cede examination,  not  follow  it.  But  aside  from 
this  serious  defect  in  the  law,  it  will  be  seen  that 
there  is  no  provision  udiich  assures  to  the  accused 
a  trial  at  any  time,  either  before  or  after  notice, 
under  the  forms  of  law ;  no  provision  which  guar- 
antees to  him  a  judicial  investigation  and  a  de- 
termination as  to  his  sanity.  The  officer  before 
whom  the  inquiry  is  pending  is  nowhere  required 
to  conduct  his  examination  witli  the  least  regard 
to  the  rights  of  the  person  charged  with  being 
insane — his  right  to  exercise  his  faculties  without 
umoarranted  restrair,t,  and  to  follow  any  law- 
ful avocation,  for  the  support  of  life. 

"Nor  is  the  officer  obliged  to  hear  a  particle  of 
testimony,  althouiih  he  is  at  liberty  to  do  so.  The 
accused  or  the  County  attorney  might  appear  be- 
fore him  with  an  army  of  volunteer  witnesses; 
but  if  their  testimony  were  received  or  heard,  or 


245 


//  titcrc  teas  the  slicjhfest  approach  to  a  trial,  it 
would  be  tliroui»h  the  grace  of  the  officer,  not  as 
a  matter  of  right  to  the  person  wliose  personal 
liberty  is  jeopardized  by  the  proceeding.  We 
are  not  speaking  of  what  every  honorable  and 
humane  officer  would  do  when  a  case  was  brought 
before  him,  but  of  what  the  statute  would  per- 
mit an  officer  to  do. 

^^Farther  examination  of  this  enactment  need 
not  he  made,  for  enough  has  been  said  to  establish 
its  invalidUy  and  to  indicate  lohat  outrages  might 
he  perpetrated  under  it.  The  objection  to  such 
a  proceeding  as  that  authorized  by  this  statute 
does  not  lie  in  the  fact  that  the  person  named  may 
be  restrained  of  his  libei'ty,  hut  in  allowing  it  to 
be  done  without  first  having  a  judicial  investiga- 
tion to  ascertain  whether  the  charges  made  against 
him  are  tnie,  not  in  committing  him  to  the  hos- 
pital, hut  in  doing  if  without  first  giving  him  an 
opportunitg  to   he  heard. 

"We  are  compelled  to  the  conclusion  that  the 
enactment  of  the  sections  referred  to  is  uncon- 
stitutional, because  they  allow  and  sanction  a 
denial  of  the  protection  of  the  law,  and  the  de- 
privation of  personal  liberty  without  due  process 
of  law. 

"As  we  have  shown,  the  statute  is  so  con- 
structed that  the  opportunity  to  be  heard  in  de- 
fense is  not  guaranteed  to  the  person  charged.  It 
is  not  framed  so  as  to  compel  a  hearing  before 
condemnation  or  a  trial,  under  the  general  forms 
of  law,  before  judgment  is  pronounced.  Where 
it  is  plain  that  legislation  upon  any  subject  is 
in  conflict  with  constitutional  provisions,  the  duty 
of  the  Court  is  obvious,  and  must  be  performed, 


246 


whether  the  interest  of  a  large  number  or  of  a 
certain  class  of  people  is  involved,  or  the  rights 
of  a  single  citizen." 

As  was  said  in  the  case  <iiioted  above,  People  c.jp  rel. 
Elizabeth  Ordway  v.  St.  Saviour  Asylum,  34  App,  Div., 
at  page  371 : 

"A  hearing  or  an  opportunity  to  be  heard,  is 
absolutely  essential,  we  cannot  conceive  of  due 
Ijrocess  of  law  without  this." 

And  quoting  again  from  Cumming  &  Gilbert  on  The 
Poor,  Insanity,  etc.,  Laws  of  New  York,  page  173 


■'->  • 


"No  person  can  lawfully  be  declaretl  insane  and 
his  personal  liberty  permanently  restricted  with- 
out formal  proceedings,  and  an  opportunity  af- 
forded him  to  appear  personally.     *     *     *" 

And  again,  from  Buswell  on  Insanity,  Section  55 : 

"The  party  alleged  to  be  insane  has  the  right 
to  have  notice  and  to  be  present  at  the  proceedings 
for  determining  the  issue  of  sanity.     *     *     *" 

So  in  Hinchman  v.  Ritchie,  Brightley  ( Pa. ) ,  182,  the 
Court  said : 

"In  all  other  cases  *  *  *  he  is  followed 
and  the  commission  executed  where  he  is  found, 
that  this  privilege  of  being  present  may  be  se- 
cured to  him,  and  secured  not  merely  for  exhibi- 
tion of  him  to  the  commissiop  and  inquest  *  *  * 
but  also  to  give  him  full  opportunity  of  defeat- 


247 


ing  proceedings  improper,  for  want  of  foundation 
or  legal  conduct,  in  any  of  its  stages." 

And  in  the  case  of  James,  30  How.  Pr.  (N.  Y.),  453, 
it  was  said : 

''I  think  no  person  should  be  adjudged  to  be 
insane  or  be  confined  as  a  lunatic,  except  per- 
haps temporarily,  without  an  opportunity  of  being 
heard  on  the  question  of  his  alleged  insanity  be- 
fore a  tribunal  competent  to  decide  it." 

And  in  another  New  York  case,  In  re  Tracey,  1,  page 
580,  it  was  said  : 

"It  is  the  privilege  of  a  party  against  whom  a 
commission  of  lunacy  is  issued  to  have  notice  and 
to  he  present  at  its  execution." 

Approved  in  In  re  Whitemack,  3  N.  J.  Eq.,  252. 

In  Holman  v.  Holman,  80  Me.,  139,  the  Court  used 
this  language : 

"It  is  a  well-settled  rule  of  the  Common  Law 
that  Avhen  an  adjudication  is  to  be  made  which 
will  seriously  affect  the  right  of  a  person,  he 
should  be  notified  and  have  opportunity  to  he 
heard." 

In  the  case  of  Vanauken,  10  N.  J.  Eq.,  186,  the  follow- 
ing occurs : 

"The  alleged  lunatic  has  a  right  to  he  present 
at  the  execution  of  the  comitiission,  to  make  his 


24S 


defense  by  liiinself  or  counsel  and  to  examine  wit- 
nesses." 

And  in  the  very  early  case  of  Ex  parte  Cranmer,  12 
Ves.  Jr.,  at  page  455,  the  Chancellor  said: 

''The  party  certainly  must   he  present  at  the 
execution  of  the  commission.     It  is  his  privilege. 


y} 


And  in  the  Supreme  ('ourt  of  the  United  States  the 
same  question  has  been  discussed  and  passed  upon.  In 
Windsor  <-.  McVeigh,  93  U.  S.,  278,  the  Court  said : 

''The  la\y  is  and  always  has  been  that  whereyer 
notice  or  citation  is  required  the  party  cited  has 
the  right  to  appear  and  he  heard. 


?y 


But  it  is  useless  to  multiply  authorities.  The  propo- 
sition is  well  settled  that  a  party  against  whom  any 
charge  or  claim  is  made,  likely  to  affect  his  liberty  or  his 
property,  must  haye  an  opportunity  to  be  heard  in  his 
own  behalf. 

USUALLY  BY  NOTICE. 

Usually  this  opportunity  to  be  present  and  to  be  heard 
is  giyen  by  notice  of  the  nature  of  the  proceedings  and 
the  time  and  place  of  the  hearing.  It  would  be  hard  to 
conceive  a  better  method  of  giving  opportunity  under 
ordinary  conditions.  Ordinary  conditions  imply  a  de- 
fendant who  is  free  to  control  his  person  and  under  no 
restraint.  Ordinary  conditions  im])ly  a  defendant  or 
respondent  who  is  untrammelled  and  who  is  permitted 
to  follow  the  inclination  and  determinations  of  his  own 
mind.  But,  after  all,  the  notice  is  only  the  machinery 
used  to  afford  opportunity.     It  is  not  the  opportunity 


240 


itself;  and  opportunity  to  he  Jicard  is  the  «iist  and  sub- 
stance of  the  constitutional  requirement. 

As  was  said  in  Windsor  v.  McVeigh,  93  U.  S.,  277-8 : 
**But  notice  is  only  for  the  purpose  of  affording  the 
party  an  opportunity  of  being  heard  upon  the  claim  or 
the  charges  made ;  it  is  a  summons  to  him  to  appear  and 
speak,  if  he  has  anything  to  say,  why  the  judgment 
sought  should  not  be  rendered." 

The  question  of  immediate  moiiient  therefore  in  the 
case  under  consideration  is,  was  an  opportunity  to  ap- 
pear and  defend  ])laintiffs  rights  afforded  to  plaintiff; 
that  is,  was  such  opj^ortunity  afforded  as  is  contem- 
plated by  due  process  of  law? 

PLAINTIFF  WAS   UNDER   DURESS   OF   IMPRIS- 
ONMENT. 

It  must  not  be  forgotten  that  plaintiff  was  under 
duress  of  imprisonment.  Plaintiff  had  been  committed 
to  said  Society  of  the  New  York  Hospital  as  insane, 
was  imprisoned  in  said  asylum  and  had  been  for  two 
years.  Plaintiff  was  held  there  against  plaintiff's  will 
and  over  plaintiff's  protest  at  the  time  of  said  proceed- 
ings. And  the  fact  that  plaintiff  was  so  imprisoned  and 
so  under  duress  was  knoum  to  the  Court:  the  record 
itself  shows  this  (Transcript  of  Record,  pp.  100-103). 

First. — The  notice  of  motion  was  directed  to  "John 
Armstrong  Chanter,  Bloomingdale  Insane  Asylum, 
White  Plains,  Westchester  County,  New  York." 

Second. — The  affidavit  of  service  of  the  notice  of  mo- 
tion upon  plaintiff  discloses  the  fact  that  he  was  in 
"Bloomingdale  Asvlum,  at  White  Plains." 


250 


Third. — The  affidavit  of  said  Dr.  Lyon  to  said  petition 
of  plaintiff's  said  brothers  shows  that  plaintiff  was  a 
^'patient"  in  the  Asylum  aforesaid. 

Fourth. — The  appointment  of  the  Commissioner  di- 
rects tliem  to  inquire  whether  plaintiff  "now  in  Bloom- 
ingdale  Asylum  in  the  State  of  New  York,  is  an  in- 
competent person." 

Fifth. — The  appointment  also  directs  notice  to  be 
liiven  to  Dr.  Lyon,  ''tlie  ]ierson  having  the  charge  and 
care  of  him." 

Sixth.— The  affidavit  of  William  White  Whitaker 
that  he  served  the  notice  of  hearing  shows  that  it  was 
served  on  plaintiff  "at  Bloomingdale  Asylum"  and  on 
said  Dr.  Lyon  "in  whose  charge  the  said  John  Arm- 
strong Chanler,  an  alleged  incompetent  person,  is." 

SERVICE  ON  A  PERSON  UNDER  DURESS. 

What  effect,  therefore,  can  any  process  have  upon 
plaintiff  under  said  circumstances — plaintiff'  being  held 
in  durance — to  prevent  plaintiff's  following  plaintiff's 
own  inclinations  and  to  restrain  plaintiff  from  going 
where  plaintiff'  miglit  wisli?  The  ])o\ver  of  the  State  of 
New  York  had  seized  plaintiff  and  in  effect  had  said 
to  plaintiff:  , 

"You  shall  not  leave  this  place  of  imprison- 
ment to  Avhich  I  have  confined  you  until  the  of- 
ficials in  charge  of  it  and  of  you  give  you  per- 
mission to  do  so." 

What  opportunity  did   plaintiff  have  to  appear  in 


251 


person  aud  defend  his  liberty,  and  his  entire  estate? 

This  being-  so,  and  it  being-  true  that  plaintiff,  through 
physical  inability  as  aforesaid,  had  no  opportunity  to 
appear  and  defend  plaintiff's  rights,  what  effect  can 
be  given  to  the  notice  that  was  served  upon  plaintiff"? 
We  find  tliat  a  case  somewhat  similar  to  it  has  been 
passed  upon  by  no  less  authority  than  the  Supreme 
Court  of  the  United  States.  In  Windsor  v.  McVeigh, 
93  U.  S.,  the  facts  were  these:    ^ 

McVeigh  was  a  Virginian  and  owned  property  in 
Alexandria  County,  in  that  State.  During  the  Civil 
War  he  was  a  suppoi'ter  of  the  Confederate  Govern- 
ment and  a  soldier  in  its  army.  An  act  of  Congress 
was  passed  providing  for  the  confiscation  of  the  property 
of  such  persons,  and  under  that  act  proceedings  were 
instituted  in  Alexandria  County  to  enforce  the  con- 
fiscation of  McVeigh's  property. 

Notice  of  the  proceedings  were  given  by  publication, 
as  was  required  by  the  statute,  and  in  response  to  that 
notice  McVeigh  appeared  by  attorney  and  filed  his  an- 
swer in  the  suit. 

The  United  States  attorney  moved  the  Court  to  dis- 
miss the  answer  because  McVeigh  was  a  rebel.  The 
Court  did  dismiss  the  answer  and  denied  McVeigh  the 
opportunity  to  defend  his  property  rights  and  entered 
an  ordei'  confiscating  his  property.  The  cause  was  taken 
to  the  Supreme  Court  of  the  United  States  and  the  pro- 
ceedings were  held  void.     The  Court  said,  pages  277-8: 

"Until  notice  is  given,  the  Court  has  no  juris- 
diction in  any  case  to  proceed  to  judgment,  what- 
ever its  authority  may  be,  by  the  law  of  its  organ- 
ization, over  the  subject-matter.  But  notice  is 
only  for  the  purpose  of  affording  the  party  an  op- 
portunity of  being  heard  upon  the  claim  or  the 


charges  made.  It  is  a  summons  to  him  to  appear 
and  to  speak,  if  he  has  anything  to  say,  why 
judgment  sought  should  not  be  rendered.  A 
denial  to  the  party  of  the  benefit  of  a  notice  would 
he  in  effect  to  deny  that  he  is  entitled  to  notice 
at  all,  and  the  sham  and  deceptive  proceedings 
had  better  be  omitted  altogether." 


'i^^ 


And  again,  at  page  278: 

"The  law  is  and  always  has  been  that  when- 
ever notice  or  citation  is  required,  the  party  cited 
has  the  right  to  appear  and  be  heard;  and  when 
the  latter  is  denied  {note  the  distinctiofi  be- 
tween notice  and  opportunity),  the  former  is  in- 
effectual for  any  purpose.  The  denial  to  a  party 
in  such  a  case  of  the  right  to  appear  is  in  legal 
effect  the  recall  of  the  citation  to  himJ' 

The  case  of  McVeigh  r.  United  States,  11  Quail,  259, 
and  the  case  of  Underwood  v.  McVeigh,  23  Graft.  (Va.), 
409,  are  to  the  same  effect,  and  grew  out  of  the  same 
general  state  of  facts. 

In  Underwood  r.  McVeigh,  at  page  418,  the  Court 
said :  "No  sentence  of  any  Court  is  entitled  to  the  least 
respect  in  any  other  Court  or  elsewhere,  when  it  has 
been  pronounced  ex  parte  arid  toithout  opportunity  of 
defense.  *  *  *  A  tribunal  which  decides  without 
hearing  the  defendant  or  giving  him  an  opportunity  to 
be  heard  can  not  claim  for  its  decrees  the  weight  of 
judicial  sentences.'' 

Notice  the  similarity  of  the  two  cases  in  general 
characteristics.     In  both  cases  notice  was  given  to  the 


25;i 


defendant;  in  one  by  actual  service  in  person,  and  in 
the  other  by  publication.  In  both  cases,  the  party  was 
prevented  from  appearing  by  order  of  the  Court.  In 
the  ■McVeigh  case  the  order  was  entered  after  he  at- 
tempted to  appear.  In  the  Chaloner  case  the  order  was 
entered  before  notice  to  Chaloner.  In  both  cases  it 
was  the  order  of  the  Court  which  nullified  the  notice 
that  was  given.  McVeigh  could  not  appear  because 
the  Court  would  not  let  him.  Chaloner  could  not  ap- 
pear because  the  Court  did  not  let  him.  Chaloner  could 
not  appear  because  the  Court  had  placed  him  in  such 
a  position — said  physical  disability  brought  on  by  the 
continement  ordered  by  Judge  Gildersleeve,  in  said 
Judge's  said  order  of  March  10th,  1897 — that  it  was 
impossible  for  Chaloner  to  appear  except  by  order  of  a 
competent  tribunal  directing  said  commission  and  said 
jury  —or  a  committee  made  up  of  members  of  said 
commission  as  well  as  of  said  jury — to  visit  Chaloner 
in  his  cell — in  the  event  of  Chaloner  being  physically 
incapacitate<l  from  making  the  journey  to  Court — 
and  said  order  loas  never  entered.  The  law  does  not 
countenance  the  doing  of  a  vain  thing.  If  it  required 
notice  to  be  given  Chaloner  in  the  said  proceedings 
to  appoint  his  said  committee,  it  required  it  for  the  pur- 
pose of  giving  him  an  opportunity  of  being  present  to 
represent  himself  in  said  proceedings.  And  if  said  op- 
portunity to  appear  which  said  notice  was  intended 
to  give  was  not  in  fact  given,  but  was  prevented  by 
Chaloner's  said  situation — said  physical  disability — 
which  was  itself  due  to  said  order  of  said  Judge  Gil- 
dersleeve in  March,  1897  (and  under  a  void  proceed- 
ing be  it  remembered),  then  said  notice  is  in  effect  with- 
drawn and  said  proceedings  are  wholly  ex  parte  (Wind- 
sor r.  McVeigh,  supra;  Underwood  v.  McVeigh,  supra). 
The  said  Commissioners  had  the  power  to  require  the 


25-1: 


production  of  Chaloiier  before  them  and  said  jury.  Said 
power  was  especially  conferred  upon  them  by  the  order 
of  their  said  appointment.  And  said  power  was  for  the 
pnrpose  not  only  of  examining  Chaloner,  but  also  for 
the  purpose  of  giving-  him  the  chance  to  defend  him- 
self (Hinchman  v.  Ritchie,  Brightley,  182)  :  "In  all 
other  cases  *  *  *  he  is  followed  and  the  commis- 
sion executed  where  he  is  found,  that  this  privUe(je  of 
heinf/  present  may  be  secured  to  him,  and  secured  not 
merely  for  exhibition  of  him  to  the  rommissioner  and 
inquest  *  *  *  b^t  also  to  give  him  full  oppor- 
tunity of  defeating  proceedings  improper,  for  want  of 
foundaticm  oi-  legal  couduct  in  any  of  its  stages."  And 
the  said  commission  should  have  so  ordered  Chaloner's 
presence,  had  it  not  been  for  the  said  sworn  testimony 
of  Doctors  Lyon,  MacDonald  and  Flint,  aforesaid,  in 
effect,  that  Chaloner  would  be  physically  injured  by 
said  production  before  said  commission  and  said  jury 
in  New  York,  twenty  miles  away  from  Thaloner's  cell, 
where  ('h:ib)n<M-  lay  in  bed  with  an  affection  of  the 
spine  which  said  affection  had  confined  Chaloner  to 
his  bed  for  three  weeks  previous,  at  least.  Upon  ascer- 
taining which  said  commission  and  said  jury,  should,  as 
pul)lic  spirited  citizens  mindful  of  their  oaths,  have  at 
once  appointed  committees  made  up  from  their  num- 
ber, to  at  once  visit  Chaloner.  And  the  Court  should 
have  ordered  Chaloner's  presence  before  said  commis- 
sion and  said  jury  as  was  done  in  ex  parte  Cranmer, 
cited  above — "it  is  his  privilege" — provided  only  that 
Chaloner  was  physically  able  to  attend  a  Court  so  far 
removed  fi-om  his  place  of  residence  at  said  time. 
Failing  which,  said  Court  should  have  ordered  that 
either  said  commission  and  said  jury,  or  a  committee 
made  up  from  each  should  visit  Chaloner  and  examine 
him  and  afford  him  the  opportunity  to  appear  and  he 


255 


heard,  which  said  void  proceeding-  under  Judi»e  Gilder- 
sleeve  in  March,  1897,  had — by  rendering  Chaloner  ill 
— ^deprived  him  of. 

If  this  had  been  done  Chaloner  would  have  been  pres- 
ent before  the  ti'ibunal  that  was  trying  him.  As  the 
said  record  proves  Chaloner  was  far  from  averse  to  re- 
ceiving visitors  who  pretended  an  interest  in  his  case 
and  in  his  liberation  from  imprisonment.  As  the  said 
record  proves  Chaloner  received  politely  visitors  pre- 
tending said  interest,  and  spoke  with  the  utmost  frank- 
ness before  them.  As  said  record  proves  Chaloner  was 
both  physically  and  mentally  able  to  sustain  the  strain 
of  an  interview  most  searching  and  most  drastic  in  its 
questionings.  He  might  have  demanded  a  removal  to 
the  Federal  Court.  He  might  have  made  what  ex- 
planation and  defence  he  desired.  He  might  have  de- 
manded witnesses.  He  might  have  cross-examined  wit- 
nesses. He  might  have  refuted  statements  made  bv  wit- 
nesses.  He  might  have  secured  counsel  to  assist  him 
in  preventing  his  further  imprisonment,  and  the  turn- 
ing over  to  a  committee  the  control  of  his  entire  estate 
and  of  his  person  as  well.  He  would  have  had  his  day 
in  court.  It  would  then  have  been  due  process  of  law 
and  the  said  proceedings  would  have  been  regular.  But 
the  aforesaid  salutary  order  was  never  given.  The 
aforesaid  Commission  and  aforesaid  jury  permitted 
plaintiff  to  remain  in  imprisonment,  where  they  knew 
plaintiff  ro  be.;  they  permitted  the  person  in  control 
of  plaintiff  to  appear  before  themselves  and  make  ex 
parte  allegations  derogatory  to  plaintiff's  sanity  and 
comp(^tency ;  u])on  which  said  points  to  wit,  plaintiff's 
sanity  and  com])etency,  depended  not  only  the  control 
and  enjoyment  of  plaintiff's  entire  estate  but  also  plain- 
tiff's personal  liberty,  and  plaintiff's  good  name  and 
fame  in  the  communitv,  in  so  far  as  such  are  affected 


25G 

by  the  stigma  of  insanity  and  incompetency:  while  the 
aforesaid    commission    and    aforesaid    jury    permitted 
plaintiff  to  remain  helpless — owing  to  plaintiff's  said 
physical  disability  to  appear  and  be  heard — to  remain 
helpless  under  vital  charges  without  opportunity  owing 
to  plaintiff's  said  physical  disability  to  refute  said  vital, 
and  as  the  result    proved,  utterly  false  charges.     The 
aforesaid    Commission    and    aforesaid    jury    permitted 
plaintiff  no  opportunity  to  refute  said  utterly  false  and 
utterly  vital  charges  upon  the  part  of  plaintiff's  quasi 
jailor  or  any  other  of  the  equally  vital  and  equally  false 
allegations    nmde    against    plaintiff    upon    the  part  of 
Doctors  :Macdonald  and  Flint.     The  action  of  the  afore- 
said Commission  as  pi-oved  by  Commissioner  Fitch,  and 
the  action  of  the  aforesaid  jury,  as  proved  by  said  jury's 
foreman  proA^e  said  Commission  and  said  jury  indiffer- 
ent not  only  to  the  rights  of  personal  liberty  and  per- 
sonal property  upon  the  part  of  a  citizen  of  the  United 
States,  but  also  indifferent  to  their  oaths.     Said  action, 
to  wit.  Transcript  of  Record,  p.   133,  fol.   257:     ''Mr. 
Candler:     That  is  our  case.'     Mr.  Candler:     'There  is 
a  desire  that  the  respondent  be  produced  here  before 
the  jury;  I  think  it  is  entirely  proper  and  I  shall  take 
an  adjournment  to  any  day  that  will  be  agreeable  to 
the  Commissioners  and  the  jury.'     The  jury  states  that 
they  do  not  desire  to  have  the  respondent  produced  in 
court.    Mr.  Candler :    'I  want  to  comply  with  the  wishes 
of  the  Commissioners  and  jurors.'     A  juror :    'The  jury 
does  not  care  to  have  Mr.  Chanler  produced  before  them 
and  for  that  reason  there  is  no  necessity  for  an  adjourn- 
ment, we  can  render  our  verdict  now.'     Mr.  Candler: 
'The  order  of  the  court  reads  that  if  the  jury  or  any  of 
the  commissioners  desire  to  have  the  respondent  pro- 
duced in  court  and  have  him  put  on  the  stand  they  may 
do  so.'    The  foreman  :    'It  will  be  very  hard  to  bring  this 


25r 


jury  here  ai^juii  and  it  is  not  their  desire  to  have  an 
adjonrnnient  of  this  inquest;  they  think  the  ease  ean 
be  submitted  upon  the  testimony  wliieh  has  been  given. 
The}'  do  not  wisli  to  have  the  respondent  placed  upon 
the  stand/  Transcript  of  Record,  p.  VM\,  fol.  257.  By 
Mr.  Fitch  (  re-examining  said  Dr.  Macdonald )  :  Q.  'Do 
vou  think,  under  the  circumsances  it  would  be  unneces- 
sary  (to  produce  plaintiff  in  court)  unless  the  Commis- 
sioners and  jury  desire  to  have  Jiim  produced?'  A.  'Yes, 
sir.'  Com.  Fitch  :  'I  think  you  have  covered  the  ground. 
We  wanted  to  have  some  reason  why  he  has  not  appeared 
at  this  inquest.'  "  Xot  "We  wanted  to  get  at  the  truth 
of  this  matter"  or  ''We  wanted  to  get  at  the  reason  why" 
but  "We  wanted  to  have  some  reason  why  he  has  not 
appeared  at  this  inquest."  Any  reason  apparently 
would  suffice  Mr.  Commissioner  Fitch,  any  reason;  even 
a  reason  as  grotesquely  ludicrous  as  totally  devoid  of 
logic,  reason,  common  sense  or  any  other  quality  save 
hunu)r  as  the  preposterous  one  said  Commissioner  builds 
his  hopes  upon,  to  wit :  "and  if  you  say  it  would  be  an 
injury  to  him  and  unduly  excite  him  to  bring  him  un- 
less the  commission  found  it  necessary  that  is  sufficient.'^ 
As  was  said  in  ^\lll<Js()r  v.  }fcVci(/Ji,  above  cited:  "The 
subse(iueut  sentence  of  confiscation  of  the  property 
(opportunity  to  be  heard  having  been  denied)  was 
ajs  inoperative  as  though  no  monition  or  notice  had 
been  issued."  And  in  Underwood  v.  McYeigh,  cited 
above,  the  Court  said :  "The  sentence  of  condemnation 
and  sale  Avas  a  nullity — void  in  toto.  It  was  rendered 
absoluteli/  void  by  the  act  of  the  Court  in  refusing  to 
permit  McVeigh  to  appear  and  be  heard."  Upon  read- 
ing said  proceedings  of  1899  and  signing  them,  the  court, 
upon  seeing,  as  we  shall  presently  prove  appears  upon 
the  face  of  said  proceedings  that  plaintiff  owning:  ^rst 
to    plaintiff    said    physical    disability — second  to  said 

(17) 


258 


court's  said  failuTe  to  order  that,  provided  plaintiff 
should  be  unable  for  any  reason  to  appear  in  court,  said 
coniniission  and  said  jury,  or  a  coniniittee  made  up 
from  members  of  said  Commission  as  well  as  from  said 
jury,  should  visit  plaintiff  in  plaintiff's  place  of  im- 
prisonment and  examine  plaintiff  personally — tJdrd  to 
the  fact  that  all  the  three  medical  experts  who  testified 
for  the  other  side  did  so,  to  the  effect,  that  plaintiff 
was  physically  incapacitated  from  appearing  in  Court 
as  tlie  folhv.ving  proves  (Transcript  of  Record,  p.  134, 
fol.  259)  :  (Doctor  Samuel  B.  Lyon  havino-  been  previ- 
ously sworn  is  recalled  by  Commissioner  Fitch).  "By 
Com.  Fitcli :  Q.  'Do  you  not  think  it  would  do  him 
(plaintiff)  harm  to  be  produced  in  court)  physically 
and  mentally?'  A.  'Yes,  sir.'  Q.  'And  do  him  an  in- 
jury?' A.  'Yes,  sir.' — Upon  reading-  said  proceedings 
and  upon  seeing  as  we  shall  presently  prove  ai)pears 
upon  the  face  of  said  proceedings  that  plaintiff  owing 
to  the  said  thr(3c  causes  was  physically  unable  to  appear 
and  therefore  in  the  eye  of  the  law  did  not  have  an  op- 
portunity to  a])])ear  in  court ;  said  court  in  failing  to 
order  a  new  trial  practically  and  in  effect  "refused  to 
peruiit  plaintiff  to  appear  and  he  heard''  by  ^'denying 
plaintiff  benefit  of  said  notice/'  It  is  a  rule  with  all 
tribunals  that  no  man  <-an  be  asked  to  come  into  court 
at  the  cost  of  his  health  and  mental  or  bodily  welfare. 
Common  hununiity  suggests  such  a  ruling.  Hence  it 
has  come  to  pass  that  the  certificate  of  a  physician — 
an  afi(i<lavit  by  said  physician — that  a  party  could  not 
be  produced  in  court  without  physical  or  mental  detri- 
ment exempts  said  party  from  appearing,  and  the  trial 
of  said  party  even  u])on  so  grave  a  charge  as  murder 
is  postponed  until  said  party  is  physically  and  mentally 
able  to  ai)pear.  A'/v/o  a  trial  had  when  the  defendant  is 
not  in  a  physical  or  mental  condition  to  appear,  and 


259 


therefore  does  not  appear,  is  a  trial  where  said  defen- 
dant had  no  opportunity  "to  appear  and  be  heard." 
Such  is  the  exact  case  with  plaintiff.  l*laintiff  is  al- 
leged upon  the  sworn  testimony  of  said  Doctor  Samuel 
B.  Lyon  to  have  said  at  the  time  that  plaintiff  was  physi- 
cally unable  to  be  present  at  said  proceedings  on  ac- 
count of  a  pain  in  plaintiff's  spine  (ibid,  p.  115,  fol.  226) 
plaintiff'  having,  upon  said  Doctor  Lyon's  said  testi- 
mony, kept  plaintiff's  bed  for  more  than  three  weeks 
and  being  in  bed  at  said  time  of  said  trial.  Plaintiff 
swears  in  plaintiff's  affidavit  subjoined  hereto  that 
said  Doctor  Lyon's  said  statement  in  re  plaintiff's  said 
statement  in  re  plaintiff's  spine  is  correct.  Plaintiff's 
said  statement  in  re  said  pain  in  plaintiff's  spine  is 
worthy  of  credence  for  three  reasons. 

First.  Plaintiff"  upon  the  sworn  testimony  of  wit- 
nesses of  the  other  side  is  an  upright  man.  The  said 
Medical  Examiners  in  Lunacy  state  (lines  223-221  of 
said  (Commitment  papers)  "He  (plaintiff')  does  not  in- 
dulge in  anv  bad  habits."  Said  statement  is  borne  out 
by  said  Doctor  Lyon  (proceedings  1899,  ]).  15)  where 
said  Doctor  Lyon  says:  "He  (plaintiff)  is  a  very  hon- 
orable man."    Transcript  of  Record,  p.  118,  fol.  231. 

Second.  Said  Doctor  Lyon  swears  (same  page  ibid) 
"He  (plaintiff)  went  out  by  himself  an  hour  or  so — then 
he  ceased  to  go  out  because  he  was  physically  unable 
to.'.'  Said  physical  inability  alluded  to  by  said  Doctor 
Lyon  preceded,  as  appears  upon  said  Doctor  Lyon's 
said  testimony,  said  pain  in  plaintiff's  spine,  which, 
growing  worse  confined  plaintiff  to  plaintiff's  bed,  where 
plaintiff  was  at  said  time  of  said  trial  and  had  been 
for  at  least  three  weeks  as  aforesaid. 

Third.  Said  Doctor  Lyon  swears  (p.  118,  fol.  231) 
that  plaintiff  told  said  Doctor  Lyon  "that  he  (plaintiff) 
could  not  come  (to  court)  on  account  of  his  infirmity." 


260 


Q.     "Did  that  infirmity  really  exist  or  was  it  a  delu- 
sion?"   A.  "I  think  he  has  a  pain  in  his  spine     *     *     * 
he  did  not  feel  as  if  he  could  stand  up ;  he  has  kept  his 
bed  for  over  three  weeks  at  least."     Although  all  three 
said  Doctors  do  their  best  to  belittle  plaintiff's  said  in- 
firmity in  order,  on  the  evidence  patent  to  a  careful  stu- 
dent of  said  testimony  at  said  proceedings  in  order  to 
prejudice  said  Commission  and  said  jury  against  plain- 
tiff, and  cause  said  commission  and  said  jury  to  con- 
clude that  plaintiff  was  not  only  a  hypochondriac,  but 
was  indifferent  to  said  Commission  and  said  jury  and 
said  proceedings,  and  did  not  care  to  take  the  trouble 
to  obey  the  summons  and  ai)pear  in  court  and  defend 
plaintiff's   good   name  and   plaintiff's  rights,   although 
all  three  said  Doctors  do  their  best  as  aforesaid  to  be- 
little plaintiff's  said  infirmity,  yet  when  there  seems  for 
a  transitory  moment — and  in  spite  of  the  reiterated  pro- 
tests of  said  jury  in  strenuous  opposition  to  said  pro- 
position— yet  when  there  seems  for  one  fleeting  moment  a 
possibility  of  the  question  of  plaintiff's  being  brought  to 
court  all  three  said  Doctors  at  once  change  their  base 
with  amazing  swiftness,  if  not  with  a  like  ability.     Said 
Doctor  Lyon  is  so  anxious  to  prevent  plaintiff's  appear- 
ance on   the  witness   stand   that   said   Doctor   in   said 
Doctor's  zeal  does  not  shrink  from  swearing  in  two  op- 
posite directions.      (Transcript  of  Record,  p.   133,  fol. 
257.)     "Com.  Ogden :    'The  respondent  can  be  produced 
in  court  without  any  injury  or  harm  being  done  to  him- 
self— I  understand  the  doctors  have  testified  that  he  is 
physically  al)le  to  attend  court.'    :Mr.  Chandler  :    'I  shall 
produce  him  here  if  it  is  the  wish  of  the  commissioners, 
and  if  we  take   an   adjournment   to   some   otljer   day.' 
Com.  Fitch:  'I  will  ask  to  have  Dr.  Lyon  recalled'   (p. 
134,  fol.  259).    Doctor  Samuel  B.  Lyon  having  been  pre- 
viously  sworn   is   recalled   by   Doctor   Fitch.      By   Mr. 
Candler:     Q.  'Doctor,  will  you  be  kind  enough  to  state 


261 


whetlier  in  yonr  jndjiinent,  in  view  of  the  desire  of  John 
xirmstrong-  Chaider  not  to  eonie  before  this  Commission 
and  jnry  that  it  will  do  him  an  injnry  to  brinj;  him  down 
here  against  his  will?'  A.  'I  think  it  wonhl  be — I  think  lie 
would  be  very  much  incensed  and  get  excited ;  I  think  it 
would  be  an  injury  to  him.  When  I  said  he  was  physi- 
cally able  to  come  down  I  mean  if  he  wanted  to  come, 
but  not  forcibly — not  to  bring  him  down  forcibly.' 
Q.  'You  think  it  would  exhaust  him  to  bring  him  down 
here  before  these  commissioners  and  jurors?'  A.  'Yes, 
sir.'  By  Com.  Fitch :  'You  think  it  would  be  an  injury 
to  him  to  bring  him  down  here?  On  your  former  testi- 
mony you  said  it  would  be  no  injury.'  A.  'It  would 
be  no  injury.'  Q.  'Now  you  are  willing  to  say  it  would 
do  him  harm  and  injury  if  he  were  brought  down  here 
before  this  commission  and  jury."  A.  'I  don't  want  my 
testimony  to  be  contradictory.  I  think  his  illness  is 
hypochondriacal.  He  has  the  physical  strength  to  come 
down,  but  I  think  he  would  be  excited  and  disturbed 
by  it  and  it  would  make  him  uncomfortable'  {sic). 
Q.  'Do  you  not  think  it  would  do  him  harm  physically 
and  mentally?'  A.  'Yes,  sir.'  Q.  'And  do  him  an  in- 
jury?' A.  'Yes,  sir.'  Q.  'Not  permanently  but  tempo- 
rarily?' A.  'Yes,  sir.  He  is  a  man  that  don't  bear  op- 
position ;  he  becomes  excited — he  does  not  brook  oppo- 
sition.' By  a  juror:  'Would  yon  have  to  use  force  to 
bring  him  here?'  A.  'It  would  just  depend;  it  would  de- 
pend u])on  how^  he  took  it;  he  said  he  did  not  want  to 
come  down.' "  Upon  examining  the  above  peculiar 
sworn  testimonv  one  is  struck  bv  two  things. 

First.  One  is  struck  by  the  craft  displayed  by  Lawyer 
Candler  in  playing  upon  the  human  nature  of  said  jury, 
to  wit.  Said  jury  have  iterated  and  reiterated  their 
dislike  to  having  plaintiff  placed  upon  the  stand.     Said 


262 


foreman  of  said  jury  lias  uone  so  far  as  to  announce 
that  (Transcript  of  Record,  p.  133,  fol.  257).  "It  will 
be  very  hard  to  brino-  this  iurv  liere  aaain  and  it  is  not 
their  desire  to  have  an  adjournment  of  this  inqnest; 
they  thinlv  the  case  can  be  submitted  upon  the  testimony 
wiiich  has  l)een  t»iyen.  They  do  not  wish  to  haye  the 
respondent  placed  upon  the  stand/'  Said  exceedingly 
frank  foreman  of  said  jury  was  eyidently  set  against 
bringing  the  jury  there  again.  An  adjournment  would 
obyiously  do  that,  therefore  an  adjournment  of  all  other 
things  was  the  thing  at  that  time  that  said  frank  fore- 
man regarded  with  hostile  eye.  Said  lawyer  Candler 
was  quick  to  seize  upon  said  weak  spot  in  said  fore- 
man and  promptly  thrust  said  obnoxious  proposition  of 
an  adjournment  re-enforced  by  the  pleonastic  "to  some 
other  day"  (ihid  fol.  257) — prominently  under  the  nose 
of  said  foreman.  Mr.  Candler:  "T  shall  produce  him 
(plaintitf )  here  if  it  is  the  wish  of  the  commissioners 
(iikI  if  ICC  fdkc  (III  (idjoiiniiiicitf  to  some  other  daij.' 


}y 


Second.  Upon  examining  said  aboye  peculiar  sworn 
testimony  one  is  struck  by  the  folloAying.  Said  Lawyer 
Candler  says:  (ihid  fol.  258).  Q.  "Doctor,  will  you 
be  kind  enough  to  state  whether  in  your  judgment,  in 
rieir  of  flic  desire  of  John  Armstrong  Chanler  not  to 
come  before  this  eommission  (iiid  jiiri/  that  it  will  do 
him  an  injury  to  bring  him  down  here  against  his  will?" 
It  will  b(^  noted  that  said  lawyer  Candler  does  not  say 
"in  yiew  of  John  Armstrong  Chanler's  statement  that 
he  is  physically  unable  to  be  present  on  account  of  a  pain 
in  his  spine"  but  "in  yiew  of  the  desire  of  John  Arm- 
strong Chanler  not  to  come  before  this  commission  and 
jury.''  Doctor  Lyon  is  not  the  only  one  of  said  Doctors 
who  changed  base  precipitately.  Said  Doctor  Carlos  F. 
Macdonald  said  ( ihid,  fol.  241  I  :  "I  examined  him  (plain- 


263 


tiff)  ai;aiii  in  company  with  Dr.  Flint  at  Blooniingdale 
on  April  20tli,  181)9,  Ibis  year.  This  examination  lasted 
from  about  six-tbirty  to  eight  o'clock  P.  M.  On  this  oc- 
casion be  was  in  bed  and  he  was  in  what  seemed  to  be 
his  usual  physical  condition.  He  did  not  at  first  com- 
plain of  any  physical  ailment,  but  in  reply  to  questions 
he  said  that  on  April  14th,  1899,  he  was  suddenly  seized 
with  a  remarkable  senisation  in  the  spine  just  above  the 
sacrum.  *  *  *  He  was  wearing  a  porous  plaster 
which  be  said  gave  him  instant  relief  when  he  applied 
it.  He  said  his  nervous  system  was  run  down  under 
his  'incarceration.'  *  *  *  He  said  nothing  about 
spinal  trouble  excejit  in  answer  to  (iiiestions.  We  formed 
the  opinion  be  bad  no  disease  of  the  spine  and  the  ilifiii- 
culty  complained  of  is  a  delusion  probably  temporary.  He 
received  us  on  tliis  occasion  very  cordially  again.  *  *  * 
He  talked  most  freely  and  seemcil  to  conceal  nothing 
from  us."  So  jiiucli  for  Doctor  Macdonald's  debonnair 
diagnosis  of  plaintiff's  said  ])ainful  and  prolonged  suf- 
fering. But  said  Doctor  Macdonald  trims  about  as 
swiftly — but  less  clumsily — than  said  Doctor  Lyon  when 
there  arrives  tb(^  said  Heeting  possibility  of  the  (|uestion 
of  plaintiff"s  being  l)rought  into  court.  (//>/</,  fol.  259.) 
''Doctor  Carlos  F.  .Macdonald,  having  been  ]>reviously 
sworn,  is  recalled  by  Doctor  Fitch.  By  Mr.  Candler: 
Q.  'Will  you  be  kind  enougli,  Doctor,  to  state  your  views 
in  regard  to  the  effect  u])on  Mr.  John  Armstrong  Cban- 
ler  to  bring  him  down  here  in  view  of  the  statement  which 
he  made  to  Doctor  Lyon  in  reference  to  his  i)reference  not 
to  come?-  A.  'I  think  it  would  excite  bim  very  much; 
in  that  way  it  would  tend  to  aggravate  liis  mental  condi- 
tion, lie  is  physically  al)le  to  come  down  here,  l)ut  it 
would  unduly  excite  him:  it  would  undoubtedly  excite 
bim  verv  much  and  exhaust  bim." 

Doctor  Austin  Flint,  Senior's,    opinion    aff'ords    very 


26 1 


small  hold  for  dissection.  Said  opinion  is,  in  effect, 
merely  an  affirmation  of  the  said  opinion  of  said  Doctor 
Macdonald.  (])p.  125-12(),  fols.  244-240,  ihid.)  "Doctor 
Austin  Flint,  beini^  called  as  a  witness  for  the  Petition- 
ers, was  (Inly  sworn,  and  testitied  as  follows:  By  Mr. 
Candler     *     *     * 

A.  'I  examined  Mr.  Chanler  March  l(>th,  with  Doctor 
Macdonald,  and  I  haye  listened  carefully  to  his  testi- 
mony and  that  is  the  testimony  that  I  should  iiiye  if 
I  were  to  detail  to  the  jury  the  examination  we  made  and 
the  result  arrived  at — perhaps  adding  my  recollection 
to  his."  *  *  *  (P.  135,  fol.  2(n,  ibid.)  ''Doctor 
Austin  Flint,  havini>'  been  i)reviously  sworn,  is  recalled. 
By  Mr.  ('andler:  Q.  'Doctor  Flint,  what  have  you  to 
say  on  this  subject,  in  regard  to  brin<>ing-  ^Ir.  Chanler 
here  under  the  cii'cum>4tances  mentioned?'  A.  'From 
my  examination  of  Mr.  Chanler,  althoujih  I  (piite  agree 
with  Dr.  Fitch,  with  the  general  principle  that  the  al- 
leged lunatic  should  always  be  produced  if  physically 
able  to  come,  it  seems  to  me  that  this  case  is  so  plain 
and  distinct  that  it  is  practically  unnecessary;  and  if 
it  should  be  necessary  to  use  force  to  lu'ing  him  down 
here  against  his  will  I  think  it  would  l)e  detrimental 
to  him.  Those  are  my  views,  although  1  <iuite  agree  with 
the  practice  that  a  lunatic  ought  to  be  produced  in  court 
if  he  can'."  Said  Doctor  Flint  after  putting  out  a  deli- 
cate feeler  by  way  of  hint  to  the  said  jury  and  the  said 
Commission  that  said  Doctor  Flint's  said  testimony,  to- 
gether with  said  Doctors  ^lacdonald  and  Lyon's  said  tes- 
timony had  (piite  done  feu-  plaintiff  and  (juite  rendered  in- 
(juiry  into  the  veracity  of  said  allegations  against  plain- 
tiff upon  the  ])art  of  said  ^Medical  men  a  work  of  superero- 
gation, yet  and  nevertheh^ss  twice  remarks,  as  follows: 
"I  (piite  agree  with  Doctor  Fitch,  with  the  general  prin- 
ciple that  the  alleged  lunatic  sliouhl  always  be  produced 


265 


if  pliysically  able  to  come"  and  anaiii  "I  (piile  aoree 
with  the  practice  that  a  lunatic  oni^ht  to  be  i)ro(liiced 
in  court  if  he  can."  Obviously  if  after  the  above  reitera- 
tion, said  Doctor  Flint  was  tellini'-  the  truth  plaintiff 
was  not  ''physically  able  to  come."  The  aboye  is  the 
formidable  array  (►f  expert  opinions— all  and  sundry  of 
which  said  expert  opinions,  be  it  remembered,  are  from 
experts  of  the  otlier  side — the  aboye  is  the  formidable 
array  of  expert  opinions  in  support  of  plaintiff's  said 
assertion  that  plaintiff  was  physically  unable  to  be  pre- 
sent at  said  proceedini!,s  in  181)1)  on  account  of  a  pain 
in  plaintiff's  spine  (p.  114,  fol.  225) .  As  Aye  have  shown, 
a  trial  had  when  the  defendant  is  not  in  a  physical  or 
mental  condition  to  appear,  and  therefore  does  not  ap- 
pear, is  a  trial  had  where  the  defendant  had  no  oppor- 
tunity ''to  a])pear  and  be  heard."  As  the  United  States 
Supreme^  Court  said  in  Windsor  v.  McVeigh,  93  U.  S., 
pai>e  278,  supra:  "The  law  is  and  always  has  been  that 
whenever  notice  or  citation  is  re(iuired,  the  party  cited 
has  the  r'ajhi  to  ujtjx'dr  (lud  he  h( ard :  and  when  the  latter 
is  denied  [iioic  ihc  (VisfinctUm  hcfirecii  iKrticc  (in<l  ojipor- 
t  II II  it  I/)  the  former  is  ineffectual  for  aiii/  purpose.  The 
denial  to  a  party  in  such  a  case  of  the  rii»ht  to  appear  is 
in  leiial  effect  the  recaU  of  the  citation  to  him/'  Upon 
plaintiff's  own  assertion  aforesaid,  .supported  as  afore- 
mid  1)1/  said  Medical  experts  of  the  other  side  plaintiff 
was  physically  unable  to  be  present  at  said  proceedings 
in  1891).  IJr</o  plaintiff  had — at  said  proceedings — no 
opportunity  "to  appear  and  be  heard." 

As  the  United  States  Supreme  Court  said  in  Wiiidsor 
v.  McVeif/li,  93  U.  S.,  page  277,  supr<i:  "Until  notice  is 
given,  the  court  has  no  jurisdiction  in  any  case  to  proceed 
to  judgment,  whatever  its  autliority  may  be,  by  the  law 
of  its  organization,  over  the  subject  matter.  Rut  notice 
is  only  for  the  pur]iose  of  affording  the  party  an  oppor- 
tunity of  being  heard  upon  the  claim  or  the  charges  made. 


206 


It  is  ji  siimiiions  to  him  to  appear  and  to  speak,  if  lie 
has  anything  to  say,  wliy  judjiiuent  sought  should  not 
be  rendered.  A  denial  to  a  jxirti/  of  tl;c  benefit  of  a  notice 
would  he  in  effect  to  denij  that  he  is  entitled  to  notice  at 
all,  and  tlie  sham  and  deceptive  proceedings  had  better 
be  omitted  altogether."  As  in  the  case  of  Underwood  v. 
McVeijih,  23  Gratt  (Va.)  418  (supra),  growing  out  of 
the  same  general  state  of  facts  the  court  said :  ''No  sen- 
tence of  any  court  is  entitled  to  the  least  respect  in  any 
other  Court,  or  elsewhere,  when  it  has  been  pronounced 
c./'  parte  and  without  opportunity  of  defense  *  *  * 
a  tribunal  which  decides  Avithout  hearing  the  defendant 
or  giving  him  an  opportunity  to  be  heard  cannot  chiim 
for  its  decrees  the  weight  of  judicial  sentences."' 

The  said  Commitnu^nt  Papers  (Transcript  of  Record^ 
p.  113,  fols.  222-223)  show  that  plaintiit',  John  Arm- 
strong Chanlei',  a  citizen  of  Virginia,  was  committed 
to  Bloomingdale  Insane  Asylum  at  White  Plains,  New 
York,  by  an  order  entered  March  lOtli,  1897,  by  Judge 
H.  A.  (xildersleeve  of  the  fc^upreme  Court  of  that  State, 
upon  the  Petition  of  Winthro])  A.  ("hauler,  and  Lewis 
S.  Chanler,  brothers  of  plaintiff,  and  Arthur  A.  Carey^ 
a  cousin  of  plaintilf,  and  upon  the  certificate  of  M.  Allen 
Htarr  and  anotlier.  Statutory  Medical-Examiners-in- 
Lunacy;  and  that  personal  service  of  process  upon  plain- 
tiff was  dispensed  with  hy  said  Judge  on  the  alleged 
ground  that  plaintilf  was  dangerous.  The  said  proceed- 
ings under  whicli  plaintiff  was  so  committed  were  had 
without  any  notice  to  plaintiff  whatsoever,  such  notice 
having  ]»e(Mi  specifically  dispensed  with  by  order  of  said 
Judge  (See  said  Commitment  Papers,  fol.  223,  lines  185- 
192).  Said  commitment  was  not  temporary,  but  inde- 
terminate and  permanenf  as  to  time  and  was  stated  to 
be  after  ^'a  hearing  duly  had"  (See  Commitment  Papers, 
line  315).  Said  order  was  that  plaintiff  be  "adjudged 
insane  and  that  he  be  committed  to  Bloomingdale  Insane 


267 


Asylum  at  Wliite  I'laiiis,  N.  Y.,  an  institution  for  the 
custody  and  treatment  of  the  insane."  (See  Commitment 
Papers,  line  349-351.) 

Said  Commitment  Being,  On  Its  Face,  a  Permanent 
Order  And  Without  Notice,  Is,  For  Want  of  Due  Pro- 
cess of  La\y,  Void. 

In  Winchor  \.  McVeigJi,  93  U.  S.  supra,  the  Su- 
preme Court  of  the  United  States  said:  ''Until  notice 
is  giyen,  the  court  has  no  jurisdiction  in  any  case  to  pro- 
ceed to  judgment,  whateyer  its  authority  may  be,  by  the 
law  of  its  organization,  oyer  the  subject  matter."         ' 

(1)  As  the  above  arfianient  proves,  lack  of  notice  is 
lack  of  (lac  process  of  law.  As  has  been  shotvn  above 
there  was  lack  of  notice  to  plaintiff  in  said  proceedings 
in  1897,  b}i  irhich  plaintiff  was  declared  a  homicidal 
maniac  upon  an  order  entered  by  said  Judge  H.  A.  Oil- 
dersleeye:  upon  the  Petition  of  plaintilf's  said  brothers 
and  cousin,  Messrs.  Winthrop  Astor  Chanler,  Lewis 
Stuyyesaut  Chanler  and  Arthur  Astor  Carey;  and  upon 
the  certificate  of  lunacy  signed  by  said  Medical-Examin- 
ers-in-Lunacy  said  Doctor  Moses  A.  Starr  and  another; 
upon  the  strength  of  all  of  which,  illegal  performances 
plaintiff  was  summarily  arrested  and  incarcerated  for 
three  years  and  eight  months  in  the  Society  of  the  New 
York  Hospital,  White  Plains.  New  York,  until  plain- 
tiff' was  fortunate  enough  to  make  good  plaintilf's  escape 
therefrom  Thanksgiying  Eye,  1900.  Lf/c/v  o/  due  process 
of  law  renders  ani/  proceedin(/s  void  ergo  said  proceed- 
ings in  1897  were  yoid. 

(2)  As  the  ahove  argitnient  proves  lack  of  oppor- 
tunitg  to  appear  and  be  heard  is  lack  of  due  process  of 
late.  As  lias  been  shown  above  there  tvas  lack  of  op- 
portunity to  appear  and  be  heard — upon  plaiirtiff'\s  part 


through  illness — in  sdid  proceed  in  gs  in  1899  Itcfore  said 
Conimission  and  said  Sheriff's  jnrij  instituted  by  plain- 
titi"s  said  brothers,  .Messrs.  Wiiithrop  Astor  Chanler 
and  Lewis  Stuyvesant  Chanler  witli  a  view  to  having 
plaintiff  det-lared  an  incompetent  person,  in  whicli  said 
proceedings  said  Medical-Exandners-in-Lunacy,  said 
Doctors  Carlos  F.  :Macdonald  and  Austin  Flint,  Senior, 
testified  in  etfect  that  plaintiff  was  a  hopeless  lunatic' 
and  a  hopeless  incompetent,  and  also  joined  said  Dr. 
Samuel  li.  Lyon  in  testifying  in  effect  that  plaintiff  was 
physically  incapacitated  by  a  pain  in  plaintiff's  spine 
from  appearing  at  said  proceedings. 

Furthermore.  As  has  been  shown  above  said  court 
practically  and  in  effect  ''refused  to  permit  plaintiff'  to 
appear  and  he  Jieard"  by  ''deni/lnf/  plaintiff'  the  bene- 
fit of  said  notice''  f(U'  the  three  aforesaid  reasons:  first, 
plaintilT's  said  physical  disability — second,  said  court's 
said  failure  to  order  that,  provided  plaintiff  should  be 
unable  for  any  reason  to  appear  in  court,  said  commis- 
sion and  said  jury  or  a  Committee  made  up  from  mem- 
bers of  said  Commission,  as  Avell  as  from  said  jury,  should 
visit  plaintiff  in  plaintiff's  place  of  imprisonment  and 
examine  plaintiff  personally — third,  all  the  three  medi- 
cal experts  who  testified  for  the  other  side  did  so,  to 
the  effect,  that  plaintiff  was  physically  incapacitated 
from  appearing  in  court  as  tlie  following  proves  (Tran- 
script of  IJecord,  j).  134,  fol.  258).  "(Doctor  Samuel 
B.  Lyon  having  been  previously  sworn  is  recalled  by  Dr. 
Fitch).  By  Com.  Fitch  :  Q.  'Do  you  not  think  it  would 
do  him  (plaintiif )  harm  (to  be  produced  in  court)  phy- 
sically and  mentally?'  A.  'Yes,  sir.'  Q.  'And  do  him  an 
injury?'  A.  'Yes,  sir'."  Upon  reading  said  proceed- 
ings and  upon  seeing,  as  we  have  proved  above,  it  appears 
upon  the  face  of  said  proceedings  that  plaintiff,  owing 
to  the  said  three  causes  was  physically  unable  to  appear, 


2G9 


and  tluMvforc  in  tlic  eve  of  the  law  did  not  have  an  oppor- 
tnnitv  to  appear  in  court;  said  Court  in  failing  to  order 
a  new  trial  ])racticallY,  and  in  effect  '' refused  to  permit 
pUiintiff  to  apjxdr  <ni(I  he  heard"  by  "denyinfi  plain- 
tiff the  benefit  of  said  notice."  As  was  said  in  Under- 
irood  V.  MeYeigli,  cited  above,  the  court  said :  "The  sen- 
tence of  condemnation  and  sale  was  a  nullity — void  in 
toto.  It  was  rendered  ahsolnteli/  raid  by  the  act  of  the 
Court  in  refusini*'  to  permit  ]McVei.i>h  to  appear  and 
be  heard."  .Vnd  in  Windsor  v.  Mc\  <if/Ji,  above  cited, 
"The  subsequent  sentence  of  confiseatiou  of  the 
property  (opportunity  to  be  heard  havinn'  been  de- 
nied) was  as  inoperative  as  thouj^h  no  monition  or 
notice  had  been  issued."  As  the  above  argument  proves 
said  sentence  declai'ing  plaintiff  an  incom'petent  person 
was  a  nullity — void  in  toto.  It  was  rendered  ahsoluteJy 
roid  by  the  act  of  the  Court  in  refusing  to  permit  plain- 
tiff to  appear  and  be  heard.  The  subse(i[uent  sentence 
practically  confiscating  plaintiff's  property  by  turning 
said  property  over  to  said  falsely  alleged  committee  of 
plaintiff's  person  and  estate  (opportunity  to  be  heard 
having  been  denied)  was  as  inoperative  as  though  no 
monition  or  notice  had  been  issued.  Ergo  said  finding 
of  said  Coniniission  and  said  Sheriff's  jury  in  1899  ivas 
a  null  if  g — roid  in  toto;  and  said  subsequent  sentence  of 
said  Court  declaring  plaintiff  an  incompetent  person  and 
turning  pJaintiff's  person  and  property  orer  to  a  falsely 
alleged  coniniittee  of  plaintiff^s  person  and  estate  {op- 
port  unity  to  he  heard  Jiaving  been  denied)  ivas  as  in- 
operatire  as  though  no  monition  or  notice  had,  been  is- 
sued. 

As  the  abore  argument  proves  lack  of  opportunity  to 
appear  and  he  heard  is  lack  of  due  process  of  law.  As 
has  been  shown  above  there  ivas  lack  of  opportunity  to 
appear  and  be  heard — upon  plaintiff's  part  through  ill- 


270 


nv,s):i — in  said  proceed iiifj.s  in  1891)^  before  said  Conimis- 
siou  and  said  S^herif's  jirnj.  Lack  of  due  process  of  law 
renders  any  jjroccedings  void,  ergo  said  proceedings  in 
1899  were  void. 

Haid  proceedings  being  void  the  possession  of  plain- 
tiff's  properiii  bg  said  falsely  alleged  Committee  is  with- 
out warrant  or  anthoritji  and  plaintiff  may  pursue  said- 
falsely  alleged  Committee  in  the  Courts  as  a  trespasser 
upon  plaintiff's  property. 

Plaintiff  being  a  citizen  of  Virginia,  and  the  falsely  al- 
leged Committee  of  plaintiff's  person  and  estate,  said 
T.  T.  Sherman,  being  a  citizen  of  New  York,  and  the 
amonnt  in  controversy  being  over  three  thousand  dol- 
lars, the  Federal  Court  has  jurisdiction. 

Point  12.  The  said  Proceedings  in  1899  were  void 
for  lack  of  due  process  of  law  for  the  following  reason, 
to-\vit.  Said  trial  was  had  in  absentia.  The  Court  failed 
to  direct  the  appearance,  before  said  Commission  and 
said  Sheriff's  jury,  of  plaintiff ;  and  the  Court  also  failed 
to  direct  that,  failing  this,  said  Commission  and  jury, 
or  committees  made  up  therefrom,  should  visit  plaintiff 
in  his  cell  in  the  Society  of  the  New  York  Hospital,  at 
White  Plains. 

A^/' />r//te  Cranmer  (1806)  (supra).  Lord  Chancellor 
Erskine  said :  "The  party  certainly  must  be  present  at 
the  execution  of  the  commission  {de  lunatico  inqnir- 
eudo).  It  is  his  privilege." 

Bethea  against  ^IcLennon,  North  Carolina  Eeports 
(1840)  (supra).  The  court  said:  "It  is  true  that  the 
lunatic  is  entitled  to  be  present  before  the  jury;  and  if 
they  deny  him  this  right,  such  denial  would  be  sufficient 
cause  for  setting  aside  the  inquisition." 


271 


Hta/I'onl  \.  Sta/fonl  {.supra).  The  (\>urt  said :  "We 
think  it  iii(lis]H'iisahl('  he  (the  allei^ed  lunatic)  should 
liave  the  opportunity  afforded  him  to  hear  and  confront 
those  wlio,  by  tlieir  evidence,  are  about  to  deprive  him  of 
all  control  over  his  actions  and  take  from  him  the  en- 
joyment of  his  property.  The  defendant  had  a  I'ight  to 
demand  in  the  Appellate  Court,  le.iial  proof  of  her  in- 
sanity, and  that  legal  proof  was  not  furnished  by  testi- 
mony taken  out  of  her  presence." 

Dowell  against  Jacls,  North  Carolina  Reports  (1859) 
( supra  ) .  The  Court  said  :  ""She  had  no  notice — was  not 
legally  represented,  and  what  is  of  still  greater  import- 
ance, was  not  present,  to  be  seen  and  examine<l  by  the 
jury." 

Strirari  v.  Kirl-hridc  (18G7)  {supra).  The  Court 
said:  "Lord  Chancellor  Erskine  {<:r  parte  Cranmer, 
12  Yes.  Jr.  455)  said:  'The  party  must  certainly  be  pre- 
sent at  the  execution  of  the  commission ;  it  is  his  pri- 
vilege'.'" The  same  rule  has  l)een  adopted  in  the  United 
States.  (See  KusselFs  case,  1  Barb.  (Mi.  Rep.  38;  and 
Hinchman's  case,  Brightley's  Rep.  181.) 

State  V.  Billing.^  (1894)  (supra).  The  (Nmrt  said: 
"But  it  may  be  stated  generally  that  due  process  of  law 
requires  that  a  party  shall  be  properly  brouglit  into 
court,  and  that  he  shall  have  an  opportunity,  when  there, 
to  prove  any  fact  which,  according  to  the  Constitution, 
and  the  usages  of  the  common  law,  would  be  a  protec- 
tion to  him  or  to  his  property :  People  v.  Board  of  Super- 
visors, 70  N.  Y.  228." 

Point  13.  The  said  proceedings  in  1899  were  void 
for  lack  of  due  process  of  law,  for  the  following  rea- 


272 


sous,  to-wit:  (1)  Altlioii^li  notice  of  the  said  proceed- 
iugs  could  have  heen  giveu  days  earlier,  the  order  was 
barely  complied  with  in  giving  the  required  live  days, 
and  the  hearing  placed  at  the  unheard  of  hour  of  four 
o'clock  in  the  afternoon  in  New  York  City,  more  than 
twenty  miles  away  from  White  Plains,  where  plaintiff 
was  confined.  This  would  naturally  hurry  the  trial. 
(2)  The  constitutional  guarantee  of  due  process  of  law 
applies  to  the  proceedings  at  the  trial.  It  compels  an 
orderly,  fail-,  reasonable  presentation  of  the  facts,  and 
a  legal  conclusion  therefrom.  At  the  said  jury  trial  in 
this  case  there  was  a  most  colossal  disregard  of  the 
rights  of  liberty  and  property.  A\'hen  the  evidence  was 
in — and  there  seemed  some  chance  of  the  appearance  of 
theplaintilf — the  foreman  of  the  saidt->heritT's  jury  stated 
to  the  said  Commission :  "It  will  be  very  hard  to  bring 
this  jury  here  again  and  it  is  not  their  desire  to  have  an 
adjournment  of  this  inijuest.  Thej^  think  the  case  can 
be  submitted  upon  the  testimony  which  has  been  given. 
They  do  not  wish  to  have  the  respondent  placed  upon 
the  stand."  And  this  from  the  foreman  of  a  Sheriff's 
jury  where  the  liberty  an<l  pro[)erty  of  a  citizen  were  at 
stake,  and  wlu^'e  said  jury  had  not  been  employed  for 
weeks  or  even  days  upon  said  case,  but  had  met  for  the 
first  time  in  their  lives  on  said  case,  at  four  o'clock  that 
afternoon. 

1.  In  approaching  said  point  one  is  struck  by  two 
things.  First.  One  is  strwk  by  the  statement  that  "Al- 
though notice  of  the  said  Proceedings  could  have  been 
given  days  earlier,  the  order  was  barely  complied  Avith  in 
giving  the  required  five  days,  and  the  hearing  placed  at 
the  unheard  of  hour  of  four  o'clock  in  the  afternoon  in 
New  York  City,  more  than  twenty  miles  away  from 
White  Plains,  where  plaintiff  was  confined.  This  would 
naturallv  hurrv  the  trial." 


273 


^vcoikL  One  is  struck  by  the  statement  that  ''When 
the  evidence  was  in — and  there  seemed  some  chance  of 
the  appearance  of  the  plaintiff — tlie  foreman  of  the  said 
sheriff's  jury  stated  to  the  said  commission  'It  will  be 
very  hard  to  brini;  this  jury  here  again  and  it  is  not 
their  desire  to  have  an  adj(mrnment  of  this  imiuest.' 
They  tliink  the  case  can  be  submitted  upon  the  testimony 
which  has  been  given.  ^Tliey  do  not  ivif<]t  to  Jiare  the 
re.spoiKlciit  placed  iijk>)i  tltc  stand'.''  Altlumgh  said 
notice  of  said  Proceedings  could  have  been  given  days 
earlier  the  said  order  was  barely  i'omi)lied  with  in  giv- 
ing the  required  five  days.  A  moment's  thought  will 
arouse  the  suspicion  that  said  undue  haste  was  the 
result  of  some,  at  present,  hidden  motive.  A  moment's 
further  thought  will  confirm  said  suspicion  particularly 
when  one  connects  said  suspicion  with  said  e.xtra(mlin- 
ary  hour  for  beginning  a  judicial  proceedings  of  the 
weight  and  importance  of  said  hearing  upon  w  hich  de- 
pended not  only  the  entire  control  of  plaintiff"'s  large 
estate,  luit  also  ])laintiff"s  liberty,  i^aid  suspicions  will 
be  still  further  confirmed  by  connecting  therewith  the 
monstrous  remark  of  said  foreman,  to-wit,  ''They  (the 
said  sheritt"s  jury)  do  not  Avish  to  have  tlie  respondent 
placed  upcm  the  stand."  ".i  i-cfiisaJ  to  adjourn  an  in- 
quisition for  a  reasonaJ)lc  time  to  cnahlc  ttic  partij 
charged  to  niahe  necessarij  preparation  for  {rial,  irhen 
he  has  heen  prerented  from  niaJ:in</  that  preparation  hi/ 
the  daji  named  in  tlie  notice,  is  good  ground  for  setting 
aside  tlie  inquisition."  In  re  Jen-ett,  23  N.  J.  E(i.  288. 
Note  in  43  Am.  St.  Kep.  531. 

Point  14.  The  said  proceedings  in  1897  and  the  said 
proceedings  in  1890  were  void  in  toto  from  lack  of  proper 
evidence.  I^nless  there  is  clear  proof  of  insanity  a  judg- 
ment against  the  party  founded  thereon  runs  Un\\  of  the 

(IS) 


274 


C'Oiistitutiomil  provision.     On  the  maxim  that  "(V'llj  the 
best   evidence   prociirabk^   is   admissible"'    no    evidence, 
short  of  the  alleged   lunatic's  personal  appearance  in 
Court  or  before  a  comuuttee  of  the  jury,  can  be  the  best 
evidence  procurable  of  said  alle.ged  lunatic's  mental  and 
physical   condition.     Anything   short   of   said  personal 
apiK^arance  is  purely  e.v  parte  and  therefore  void.     The 
sum  total  of  the  evidence  against  plaintiff  in  the  pro- 
ceedings in  1897  was  made  up  of  either  purely  perjured 
testimony  upon  the  part  of  the  said  petitioners,  or  purely 
bought  and  paid  for  testimony  upon  the  part  of  the 
said   medical   examiners   in   lunacy   hired   by   the   said 
petitioners.    The  sum  total  of  the  evidence  against  plain- 
tiff in  the  proceedings  in  1S99  was  made  up  of  the  afore- 
said evidence,  perjured  testimony,  upon  the  part  of  the 
said  medical  examiners  in  lunacy  who,  as  in  the  first  in- 
stance were  in  the  pay  of  the  other  side.     The  l)ulk  of 
the  evidence  in  both  said  proceedings  had  to  do  with  the 
purely  frivolous  charge  that  plaintiff  entered  upon  oc- 
casional trances,  and  trance-like  states.     Not  one  \\'ord 
vt^as  uttered  at  either  of  the  said   proceedings  against 
plaintiff's  business  capacity,  or  business  judgment,  or 
business  foresight,  or  business  prudence.    And  this  fatal 
omission  was  in  the  teeth  of  the  fact  that  plaintiff    was, 
at  the  time  the  said  proceedings  in  1897  were  instituted, 
actively  engaged  in  large  business  operations,  in  which 
plaintiff*  had  been  engaged  for  four  yei\rs  past,  and  was 
holding  the  ])osition  as  a  member  of  the  Roar<l  of  Direc- 
tors  in    two   large  corporations  at   the   time  of  plain- 
tiff's said  arrest  and  imprisonment  upon  a  false  charge 
of  lunacy    (Folios  69-70,  87-89).     Not  a  single  one  of 
plaintiff's  associates  upon  said  Boar-ds  was  called  as  a 
witness  against  plaintiff"'s  sanity.     In  short,  the  whole 
evidence  in  plaintiff's  case  goes  to  prove  plaintiff's  per- 
manent and   unl)roken  sanity  and  competency  through 


275 


litV.     (See  Plaiiitirs  Exlill.it  3.  and  Plaiiitiff's  Exhibit 
7  for  identification.) 

In  closin';  yaid  snitject  it  inij;lit  he  well  to  draw  atten- 
tion to  the  ignorance,  the  ])i-ofessional  ignorance,  dis- 
played by  said  Doctors  Carlos  E.  Macdonald  and  Austin 
Elint,  Senior.  In  the  opinion  concerning  the  psycholog- 
ical experiments  of  plaintilf-in-error,  by  Professor  Wil- 
liam James,  M.  D.,  Professor  of  Psychology  at  Harvard 
University,  the  following  occurs,  to-wit :  "The  Napoleon 
experiment  falls  strictly  within  the  limits  of  praise- 
worthy research.  Psj^chology  would  be  more  advanced 
were  there  more  subjects  of  automatism  ready  to  explore 
carefullv  their  eccentric  facultv.  Although  the  medical 
profession  is  beginning  to  acquaint  itself  with  these  phe- 
nomena, it  is  still  lamental)ly  ignorant.  Specialists  in 
insanity  in  particular  are  ignorant,  for  in  spiritualistic 
circles  those  automatisms  are  regarded  as  valuable  gifts, 
to  be  encouraged  rather  than  checked,  and  asylum  Doc- 
tors hardly  ever  see  them.  When  they  do  see  them  they 
may  interpret  them  as  delusional  insanity,  with  which 
they  arc  familiar,  and  a  merely  mediumistic  subject  may 
thus  have  grievous  injustice  done  him.  In  delusional  in- 
sanity there  is  also  automatism,  so  'Paranoia'  so-called 
and  mediumship  have  elements  in  common.  But  for  'Para- 
noia" to  be  diagnosed  there  must  be  no  distinct  alterna- 
tion  between  the  primary  and  the  'X'  consciousness,  and 
there  must  be  marked  abnormal  peculiarities  in  the  case 
as  well  as  intellectual  delusion.  In  Mr.  C'hanler's  case 
there  appears  to  have  been  complete  alternation,  and 
there  is  no  sign  whatever  of  delusion."  In  said  opinion 
of  the  late  Doctor  Thomson  Jay  Hudson  the  following 
occurs,  to  wit :  "The  salient  feature  of  the  situation  con- 
sists in  the  fact  that  he  (plaintiff)  has  made  an  origi- 
nal and  inde])endent  discovery  of  a  most  important 
Psvcholouical  fact.     In  fact  it  mav  be  said  to  be  the  fun- 


276 


damental  fact  of  Psvt'holoi>ical  science,  since  all  other 
facts  of  Psycholojiy  sustain  a  necessary  relationship  to 
it;  and  many  of  them  are  inexplicable  in  the  absence 
of  a  knowledge  of  the  fundamental  fact  or  principle,  that 
Mr.  Chanler  discovered.  It  is  that  man  is  endowed  with 
a  mental  faculty — or  a  congeries  of  mental  faculties 
and  powers — that  lie  below  the  threshold  of  normal  con- 
sciousness. I  do  not  say  that  Mr.  Chanler  was  the  first 
discoverer  of  this  fact ;  for  I  do  not  know  the  date  of 
his  discovery.  But  I  have  everv  reason  to  believe  that 
he  was  an  original  and  independent  discoverer.  It  is 
true  that  many  eminent  scientists  have,  within  the  last 
decade,  arrived  at  the  same  conclusion,  each  by  his  own 
methods  of  investigation  and  experimentation.  Most 
of  them  have  made  their  experiments  on  others ;  but  one 
of  the  remarkable  features  of  Mr.  Chanler's  methods  of 
research  is  that  his  conclusions  were  based  wholly  upon 
experiments  made  upon  himself,  together  with  an  in- 
telligent observation  of  the  workings  of  his  own  inner 
consciousness.  The  advantages  of  that  method  are  ob- 
vious to  any  Psychologist.''  In  said  opinion  of  Dr.  John 
Madison  Taylor,  the  folloAving  occurs,  to  wit :  ''At  all 
times  Mr.  John  Armstrong  Chanler  consistently  holds 
to  the  view  that  this  cerebration  is  the  product  of  clear 
ratiocination,  based  upon  well-authenticated  and  ac- 
cepted facts.  Physiologic,  Psychologic,  and  Metaphysic. 
That  the  attitude  of  the  mind,  which  he  names  the  un- 
known or  X-Faculty,  is  the  product  of  mental  evolution, 
and  in  varying  degrees,  is  common  to  all  sentient  human 
beings,  and  in  no  manner  or  degree  the  product  or  re- 
flection of  any  cause  or  influence  outside  the  human 
organism.  His  chief  contention  as  to  having  made  a  dis- 
covery is  that  he  makes  practical  use  of  this  function  of 
the  suhconsciousness,  and  throngh  Graphic  Automatism 
causes  it  to  perform  literary  work.     *     *     *     He  sees 


277 

no  reason  why  others  should  not  develop  the  same  fac- 
ulty." 

An  examination  of  the  statements  and  remarks,  in 
said  proceedini>s,  ui)()n  the  ])art  of  said  Doctors  Mac- 
donald  and  Flint  reinforce  the  truth  of  said  Professor 
James's  said  remark,  "Althoujih  the  medical  profession 
is  beginnini>'  to  acquaint  itself  with  these  phenomena, 
it  is  still  lamentably  ignorant.  Specialists  in  insanity 
in  particular  are  ignorant."  Said  Doctor  Flint  says  in 
said  Doctor's  statement  (p. 86,  fol.lGG)  :  "He  (plaintiff) 
went  into  a  trance  at  the  request  of  Doctor  Macdonald 
and  gave  the  most  vivid  illustrations  of  the  death  of 
Napoleon.  He  had  told  deponent  and  the  said  Mac- 
donald that  he  was  Napoleon  only  when  in  a  trance." 
Said  Doctor  Macdonald  says  in  said  Doctor's  statement 
"He  (plaintiff)  went  into  a  trance  at  the  request  of 
deponent  and  gave  the  most  vivid  illustration  of  the 
death  of  Napoleon.  He  had  told  deponent  that  he  was 
Napoleon  only  when  in  a  trance."  Granting  said  state- 
ments touching,  "He  had  told  deponent  and  the  said  Mac- 
donald that  he  was  Napoleon  only  when  in  a  trance" 
(p.  86,  fol.  166)  and  "He  had  told  deponent  that  he  was 
Napoleon  only  when  in  a  trance,"  granting  said  state- 
ments to  be  true — which,  as  has  been  said  aforesaid 
said  statements  are  not — for  in  plaintiff's  said  affidavit 
plaintiff  swears:  "I  wished  to  have  a  little  fun 
with  Mr.  Macdonald  and  Mr.  Flint,  so  I  set  a  little  trap 
for  them,  into  which  both  fell  head  first.  It  was  as 
follows.  I  said :  'I  boldly  say  that  I  am  the  reincarna- 
tion of  Napoleon  Bonaparte.'  It  was  as  good  as  a  play 
to  one  interested  in  watching  the  facial  play  of  human 
emotions,  it  was  as  good  as  a  play  to  watch  the  Doctors. 
Mr.  Macdonald's  feline  features  and  cold  blue  eye  lit  up 
with  expectant  triumph.  In  Mr.  Austin  Flint,  Senior, 
expectancy  of  triumph  took  on  a  heavier,  but  no  less 


278 


pronounced,  form.     Mr.  Flint's  heavy  features  took  on 
an  unwonted  animation  and  his  somnolent  eye  lit  up 
with  the  flame  of  anticipation.    So  soon  as  I  had  checked 
off  the  above  facial  expressions  carefully,  so  as  to  be 
able  to  describe  them  truthfully  in  my  brief,  Avhen  occa- 
sion served,  I  instantly  threw  their  hopes  to  the  ground : 
I  instantly  added  to  my  above  remark,  'But  I  only  say 
80  irJiol  ill  (I  trance/    The  effect  was  instantaeous.     Mr. 
Macdonald  collapsed,  and  fairly  wriggled  with  chagrin, 
as  he  blurted  out  the  damaging  'You  can't  catch  him.' 
The  effect  on  Mr.  Flint  was  shown  by  his  sagging  back 
into  his  seat  with  a  grunt  of  disgust.     They  evidently, 
from  their  disappointment,  showed  that  they  fully  real- 
ized the  innocuousness  of  my  apparently  bold  declara- 
tion qualified.     They  evidently  knew  that  no  man  is 
mentally,  morally,  or  legally  responsible  for  what  he 
says  in  his  sleep.     Therefore,  they  deliberately,  craftily, 
transpose  the  position  of  the  qualifying  word  'only'  and 
instead  of  putting  it  where  it  belonged  in  my  sentence, 
move  it  to  a  point  where  it  takes  on  an  entirely  differ- 
ent meaning"^ — granting  said  statements  touching  ''He 
had  told  deponent  and  the  said  Macdonald  that  he  was 
Napoleon  only  w^hen  in  a  trance"  and  "He  had  told  de- 
ponent that  he  was  Napoleon  only  when  in  a  trance. 
Granting  said  statements  to  be  true  which,  as  indicated 
above  said  statements  are  not, — plaintiff  never  saying 
that  plaintiff  was  Napoleon  Bonaparte    except    when 
plaintiff  entered  a  trance,  whereupon  not  plaintiff  but 
plaintiff's  said  "X"  consciousness,  operating  plaintiff's 
vocal  organs,  pretended  to  be  Napoleon  Bonaparte,  a 
preposterous  proposition  stoutly  denied  by  plaintiff  upon 
issuing  from   said  trance — said   statements  fit   exactly 
the  case  mentioned  aforesaid  by  said  Professor  touching 
the  alternation  of  consciousness.     "For  'Paranoia'  "  to 
be  diagnosed  there  must  be  no  distinct  alternation  be- 


279 


tween  the  primary  and  the  "X"  coiisciousiiess."    *    *     * 
*'Iii  Mr.  Chaider's  case  there  a])i)ears  to  have  been  com- 
pk^te  alternation."     IJj   "priniai-y   conscionsness"   Pro- 
fessor .lames  means  our  ordinary  \vakin«;  eonseiousness. 
By  '^X''  conscionsness  Professor  James  means  the  con- 
sciousness in  operation  dnrin<''  trance  states  and  trance- 
like states.    Even  said  Doctors  Macdonald  and  Flint  ad- 
mit that  plaintitf  claimed  a  comi)lete  alternation  "alter- 
nation of  conscionsness"  by  assertini>-  that  i)laintiff  had 
said   that   plaintiff  "was    Na])oleon    only    when    in    a 
trance:"  that  is  to  say  that  jdaintiff's  trance-conscions- 
ness — ]daintift"s  "X"  conscionsness — as  Professor  James 
terms  it — completely  alternated  or  completely  changed 
from  plaintiff's  "primary  conscionsness,"  when  plaintiff 
entered  said  trance.     That  is  to  say.     That  plaintiff's 
"primary   consciousness"   was  in   control   of   plaintift"s 
actions  and  utterances  when  not  in  a  trance,  and  that 
when  plaintiff'  entered  a  trance  plaintiff's  primary,  or 
ordinary   waking-,   consciousness   gave   place   to — alter- 
nated with — plaintiff's  "X"  consciousness,  which  oper- 
ated said  trance,  and  as  "X"  consciousness  invariably 
pretend  to  represent  some  person,  other  than  the  person 
represented  by  said  primary    consciousness    plaintiff's 
said  "X"  consciousness  followed  said  invariable  Psycho- 
logical rule,  and  pretended  to  represent  some  person 
other  than  plaintiff — arbitrarily  choosing  to    claim    to 
represent  Napoleon  P»onaparte.     X^ow  regarding  the  ig- 
norance of  the  medical  profession  concerning  trances 
and  trance-like  states  mentioned  aforesaid  by  said  Pro- 
fessor James.    Said  Professor  says:  "Although  the  medi- 
cal profession  is  beginning  to  acquaint  itself  with  these 
phenomena  it  is  still  lamentably  ignorant.     Specialists 
in  insanity,  in  particular,  are  ignorant."     Said  special- 
ists in  Insanity,  Doctors  Macdonald  and  Flint  proved 
themselves  no  whit  less  ignorant  than  the  general  run 


280 


of  specialists  in  Insanity  in  said  rei>ard  for  instance. 
Said  Doctor  Flint  says  as  thongh  he  were  prononncinj^ 
a  final  and  incontrovertible  doom  {ibid.,  p.  12G,  fol.  245), 
"And  he  (plaintiff)  had  the  delusion  of  the  change  of 
personality  which  is  observed  in  many  cases  of  'para- 
noia.' "'  Likewise  said  Doctoi-  Macdonald  (ibid.,  p.  123, 
fol.  240)  :  ''The  form  of  his  (i^laintiff  s)  insanity,  from 
which  he  is  suffering,  is  'paranoia'  or  chronic  delnsional 
insanity,  the  English  term  of  it.  It  is  an  incurable  form 
of  mental  disease  *  «  *  it  jg  j^jgo  characterized  in 
the  mania  known  in  the  later  stage  by  the  change  in  the 
personality  of  the  individual.  *  *  *  i  should  say 
that  Mr.  Chanler  is  the  most  typical  classical  case  of 
'paranoia'  I  have  ever  seen.  I  have  seen  thousands  of 
them.  It  presents  all  the  essential  and  diagnostic  signs 
of  that  disease  *  *  *  and  change  of  personality." 
And  (  ibid.,  p.  124,  fol.  242  )  :  Q.  "In  your  opinion.  Doc- 
tor, is  he  now  of  unsound  ndnd?"  A.  "Yes,  sir."  Q. 
"Is  he  capable  of  attending  to  his  person  or  estate — his 
affairs?"  A.  "Absolutely  not."  By  Commissioner  Og- 
den  (ibid.,  fol.  243)  :  Q.  "This  opinion  is  formed  on  your 
observation?"  A.  "Ves,  sir."  Q.  "And  is  it  inde])end- 
ent  of  what  was  told  you?"  A.  "Yes,  sir.  It  is  con- 
firmed, of  course,  there  is  no  shadow  of  doubt  in  my 
mind,  and  I  think  in  the  experience — any  experienced 
exanniier  in  lunacy  would  reach  that  conclusion  ^^dthout 
any  history  of  the  case  whatever.  *  *  *  It  presents 
all  the  ear-marks  of  typical  paranoia.  In  the  physical 
and  mental  condition  there  is  no  symptom  lacking  to 
make  it  a  perfectly  typical  case  of  paranoia.  If  one 
wanted  a  case  for  teaching  or  describing  a  case  in  a  text- 
book you  could  not  describe  it  more  graphically  than 
simply  taking  his  case  as  it  presents  itself.  It  is  the 
most  striking  case  of  paranoia  that  I  ever  have  seen  in 
my  life.''     From   the  above  there  was  evidently  little 


281 


doubt  ill  said  Doctor  Carlos  F,  Macdoiiald's  mind  but 
that  plaintiff  was  afflicted  with  a  case  of  "paranoia." 
Now  let  lis  hear  what  said  Doctor  Austin  Flint,  Senior, 
has  to  say  npou  said  interesting  topic  of  ''paranoia" 
(ibid.,  fol.  245)  :  Q.  "And  from  what  form  of  insanity  is 
he  now  suffering?     A.  "lie  has  a  typical  case  of  what 
is  known  as  paranoia  or  chronic  delusional  insanity." 
Q.  "In  your  opinion.  Doctor,  is  that  progressive  and  in- 
curable?"   A.  "It  is  incurable  and  progressive  and  will 
finallv  terminate  in  dementia.     If  I  may  be  allowed  to 
say  those  cases  frequently  live  for  a  very  much  longer 
time,  quite  different  from  paresis."     Q.  "In  your  judg- 
ment, is  Mr.  Chanler  now  capable  of  taking  care  of  his 
estate  and  person?     A.  "No,  sir,  he  is  not."     l>y  Com- 
missioner  Ogden    {ihid.,  fol.  245)  :  "That  is  the  usual 
thing.   Doctor,  that  a   i)atient  suffering  fi-om   paranoia 
— it  is  tirst  by  degrees  gets  a  slight  form  and  then  a 
mature  delusion?"    A.  "That  is  the  usual  thing.    *    *    * 
He  has  some  fixed  delusion  like  this  delusion  that  he 
is  Napoleon   Bonaparte."     Q.    "Is   his   physical    condi- 
tion all  outlined  with  that  form?"     A.  "Nothing  could 
be  more  typical  of  that  form  of  disease;  it  is  an  abso- 
lutely typical  case  from  every  point  of  view."     From 
the  above  there  was  evidently  little  doubt  in  said  Doc- 
tor Austin  Flint,  Senior's,  mind  but  that  plaintiff  was 
afflicted  with  a  case  of  paranoia  notwithstanding  said 
Professor  James's  remarks  aforesaid.     "But  for  'Para- 
noia' to  be  diagnosed  there  must  be  no  distinct  alter- 
nation  between   the   primary   and   'X'    consciousness;" 
and  notwithstanding,  as  has  been  shown  above  even  said 
Doctors  Macdonald  and  Flint  admit  said  "alternation 
between  the  primary  and  'X'  consciousness"  by  assert- 
ing that   plaintiff  had   said   that    plaintiff    "was    Na- 
poleon only  when  in  a  trance."     So  much  for  the  pro- 
fessional  ignorance  displayed  by   said   Doctors   Carlos 


282 


F.  Macdonald  and  Austin  Flint,  Senior.  But  said  ad- 
niission  bv  said  Doctors  tliat  plaintitf  liad  said  that 
plaintiff  "was  Napoleon  only  when  in  a  trance"  does 
more  than  advertise  said  professional  ignorance  of  said 
Doctors.  Said  admission  places  said  Doctors  in  a 
rather  unpleasant  position  as  regards  perjury.  For 
said  Doctors  both  (h'tine  paranoia  as  "chronic  delu- 
sional insanity."  Said  Doctor  Macdonald  {ihid.,  fol. 
240)  "paranoia  or  chronic  delusional  insanity;"  said 
Doctor  Flint  (ibid.,  fol.  245)  "paranoia  or  chronic  de- 
lusional insanity."  How  could  plaintiff's  falsely,  gro- 
tesquely, iynorantly,  alleged  ''delusion''  regarding  Na- 
poleon Bonaparte  be  said  to  be  'Uhronic,"  which  means 
all  the  time,  when  said  Doctors  Macdonald  and  Flint 
both  admit  that  plaintijf  said  that  plaintiff  ''was  Na- 
poleon only  U'hen  i)i  a  trance,"  and  therefore  not  out 
of  a  trance;  and,  as  plaintijf  on  the  evidence,  only 
entered  a  trance  once  during  his  whole  imprisonment, 
once  during  three  years  and  eight  months,  therefore  not 
all  the  time  and  therefore  not  chronic.  While  the  truth 
as  shown  above  is  that  plaintiff  stoutly  denied  that 
plaintiff  was  Napoleon  Bonaparte  either  in  or  out  of  a 
trance. 

In  this  connection  it  is  apt)()site  to  draw  attention 
to  two  points  in  connection  with  said  trances  and  trance- 
like  states  in  which  plaintiff  from  time  to  time  entered 
purely  for  scientific  research.  As  has  been  shown  by  said 
statement  of  said  Doctor  Horatio  Curtis  Wood  (supra) 
and  by  the  said  opinion  of  said  Professor  James  plain- 
tiff' is  far  from  being  a  believer  in  spiritualism.  As 
has  been  shown  by  plaintiff's  said  letter  to  said  NN'oods^ 
under  date  July  3rd,  1897,  plaintiff  is  far  from  being 
either  a  Buddhist  or  a  Hindu.  Said  documents  prove 
plaintiff  to  be  a  scientific  student  who  places  what  spirit- 
ualists claim  to  be  the  work  of  spirits,  while  the  medium 


283 


is  eutnuHod,  to  the  account  of  whut  plaintiff  terms  ''The 
X-Facnlty"  as  aforesaid.  Phiintitt'  althon;L;;h  a  niediuni — 
upon  no  less  an  anthority  than  said  l*rofessor  James — 
is  a  believer  in  spiritualism.  Plaintiff,  while  consid- 
ering' spiritualism  a  crude,  ignorant  and  benighted  form 
of  belief  even  when  spiritualism  is  regarded  by  its  fol- 
lowers as  a  religi<m,  plaintiff  yet  knows  that  spiritualism 
is  a  lawful  calling  when  followed  professionally  as  a 
medium,  and  also  that  spiritualism,'  when  followed  as  a 
religion,  is  as  safe  from  attack  as  anv  other  religion. 
In  a  rather  recent  case  on  the  Pacitic  coast  where  spirit- 
ualism, as  a  religicm,  was  atta<ked  upon  the  score  of 
absurdity  the  Court  wisely  an<l  justly  held  that  com- 
mon sense  was  not  applicable  to  religious  practices.  That 
if  a  person  considered  that  said  person  was  communi- 
cating with  the  Deity  by  merely  writing  said  x><?rson's 
desires  upon  paper  and  then  destroying  said  paper  that 
said  performance,  b(ing  to  said  person  said  person's  reli- 
gion, was  therefore  to  said  person  sacred  and  secure  from 
attack  upon  any  ground  of  lack  of  common  sense.  Said 
opinion  is  maintained  by  Mr.  Justice  Ingraham  of  the 
Appellate  Division  of  the  New  York  Supreme  Court  in 
the  matter  of  Beach,  23  App.  Div.  -411  (  First  Depart- 
ment, 1897).  The  learned  Justice  said:  "//  is  true  that 
a  heJicf  in  spirituaiisni  may  he  oonsUteut  with  good  bust- 
iicsx  instincts  and  sound  jiidf/niciit :  and  the  mere  fact 
that  a  person  is  a  helierer  in  spiritualism^  tvoiild  not 
itself  justify  an  inference  that  such  person  was  incom- 
petent to  manage  himself  or  his  affairs/'' 

Lastly,  in  this  particular  the  most  fruitful  field  of  re- 
search in  Experimental  Psychology  is  that  of  medium- 
ship.  Modern  Psychologists  who  pursue  Experimental 
Psychology  find  in  mediums  a  field  for  investigating  the, 
at  present,  practically^  unknown  cause  or  causes  of  the 
trance  and  trance-like  operations  of  the  human  mind, 


284 


find  a  field  wlucli  nothings  else  supplies.  Said  mediums 
are  what  spiritualism  lias  thus  given  to  Science.  To  re- 
turn to  the  said  allegations — false  allegations — of  said 
Doctors  Macdonald  and  Flint  that  plaintitf  had  said  that 
plaintiff  "was  Napoleon  only  when  in  a  trance."  Grant- 
ing merely  for  the  sake  of  argument  that  said  false  allega- 
tions were  true  what  do  said  false  allegations  amount  to 
in  the  light  of  Mr.  Justice  Ingraham's  said  opinion  that 
"It  is  true  that  a  belief  in  spiritualism  may  be  con- 
sistent with  good  l)usiness  instincts  and  sound  judgment; 
and  the  mere  fact  that  the  person  is  a  believer  in  spirit- 
ualism would  not  of  itself  justify  an  inference  that  such 
person  was  incompetent  to  manage  himself  or  his  affairs." 
Supposing  said  false  allegations  true  plaintiff  would 
have  been  proved  thereby  to  be  a  believer  in  spiritualism. 
Taking  now  the  other  horn  of  the  dilemma  which  im- 
pales said  Doctors  ]Macdonald  and  Flint.  Suppose — 
but  only  for  the  sake  of  argument — that  plaintiff  had 
said  that  plaintiff  "was  Nnpoleon  Bonaparte  only  when 
in  a  trance"  and  also  suppose  that  plaintiff  did  not 
choose  to  protect  himself  in  said  assertion  by  s])iritual- 
ism.  Would  plaintiff  thereby  be  proved  to  be  of  un- 
sound miud?  Far  from  it.  For  plaintiff  could  fall 
back  upon  one  or  both  of  two  sufficiently  strong  sup- 
ports, to-wit :  Philosophy  and  IJeligiim.  Plaintiff  could 
fall  back  upon  Philosophy  and  upon  the  ancient  Greek 
doctrine  of  Metempsychosis,  or  plaintiff  could  fall  back 
upon  the  religion  of  Brahma,  which  teaches  the  reincar- 
nation of  the  dead  in  the  living.  Upon  the  ahoi^e  line 
of  argiunent  therefore  plaintiff  is  not  insane  or  incom- 
petent upon  the  main  count — in  fact,  the  o)il}j  count 
worthy  the  name — in  the  indictment  against  plaintiffs 
reason  in  said  proceedings  in  1897,  and  said  proceedings 
in  1899 :  the  former  of  which  are  practically  wholly 
upon  trance  or  trance-like  utterances,  while  the  latter 


285 


are  based  ])ractically  wholly  upon  said  Napoleonic 
trance;  in  neither  of  said  proceedings  is  there  one  word 
said  aojiinst  plaintiff's  "<>ood  business  instincts  and 
sound  judi>inent"  to  cite  once  more  the  lani2;uage  of  Mr. 
Justice  ln,i>rahani.  As  was  said  above  the  said  proceed- 
ings in  1897  and  the  said  proceedings  in  1899  were  void 
in  toto  from  lack  of  proper  evidence.  Unless  there  is 
clear  proof  of  insanity  a  judgment  against  the  party 
founded  thereon  runs  foul  of  the  constitutional  provi- 
sion. On  the  maxim  that  "Only  the  best  evidence  pro- 
curable is  admissible,"  no  evidence  short  of  the  alleged 
lunatic's  or  incompetent's  personal  appearance  in  Court, 
or  before  a  Committee  of  the  Commission  as  well  as  of 
the  jury  can  be  the  he><f  evidence  procurable  of  said  al- 
leged lunatic's  or  said  alleged  incompetent's  mental  and 
physical  c-ondition.  xVnything  short  of  said  personal  ap- 
pearance is  purely  ex-  parte  and  therefore  void.  In  as 
old  a  case  as  that  of  e.r  parte  Smith,  1  Swanstrom,  4, 
in  1818,  Chancellor  Lon]  /-Jldon  ohserrrd,  "It  /.s>  a  prac- 
tice hij  no  means  iineonnnon  in  cases  of  hinaci/  *  ^  * 
that  irhen  the  Innatie  cannot  he  rentored  to  the  jury 
and  it  is  inco)iveni( ni  for  the  jnrjj  io  (jo  to  the  hinatic, 
one  or  two  of  the  jnri/  examine  the  lunatic  and  report 
their  ohser rations  to  the  rest/'  In  Lord  Ely's  case 
(supra)  "try  by  a  jury  and  personal  examination."  The 
reasons  adducible  to  support  said  salutary  practice  of 
allowing  a  citizen  to  lay  eyes  upon  the  jury  who  is  about 
to  deprive  said  citizen  of  both  liberty  and  property  are 
too  obvious  to  require  pointing  out.  But  in  said  connec- 
tion a  point  comes  which  is  not  so  obvious — to-w4t: 
Under  ordinary  circumstances  an  affidavit  of  service  of 
notice  is  the  best  proof  as  to  service  of  said  notice.  But 
wdien  said  party  to  be  served  with  notice  is  in  duress  of 
imprisonment  and  therefore  is  illegally  confined  against 
said  party's  will  said  affidavit  of  service  loses  said  affl- 


280 

davit's  force  for  the  followiiiij;  reason,  to-wit.      Where 
a  parti/  to  he  -vo  served  is  at  lihcrty  the  temptation  to< 
perjiirji  upon  the  part  of  the  process-server  is  rendered 
Dec/ligiblc.    Not  so,  however,  when  said  party  is  in  duress 
of  imprisonment  surrounded  by  persons — said  party's 
physicians  and  keepers— whose  business  interests  are  in- 
volved in  retaining  said  party  as  a  prisoner  and  "pay 
patient."      In  said   instance  the  door  of  temptation  to 
fraud  and  perjury  upon  said  part  of  said  process-server 
at  tlie  paid  instigation  of  said  physicians  and  keepers, 
whose  business  interests  are  as  aforesaid,  involved  as 
well  as  whose  personal  interests  are  endangered,  that  is 
to  say  said  physicians  reputations  would  be  endangered 
should  said  party  be  fortunate  enough  some  day  to  secure 
said  party's  day  in  court.    In  said  instance  the  real  evi- 
dence and  therefore  the  best  eridence  as  to  whether  said 
service  of  notice  took  place  or  whether,  instead  of  tak- 
ing place  said  service  of  notice  was  fraudulently  sworn  to 
as  having  taken  place,  in  said  instance  the  best  evidence 
aforesaid  is  the  appearance  of  said  party  to  be  served — 
said  defendant — in  court,  or  if  this  is  not  possible  Siiid 
defendant's  word  of  mouth  on  said  subject  before  said 
Commission  and  said  jury,  or  before  said  Committee — 
made  up  from  said  Commission  and  said  jury — upon 
visiting  defendant  at  said  defendant's  place  of  imprison- 
ment.   T^nless  said  Court  orders  said  defendant's  produc- 
tion in  court  or  failing  that,  that  said  Committee — made 
up    from    said    Commission    and    said    jury — visit    said 
defendant  as  aforesaid — unless  said  action   upon  said 
Court's  part   takes   place  said   Court   itself,   as   shown 
above,  opens  wide  the  door  to  perjury.    As  we  said  above 
on  the  maxim  that  "only  the  best  evidence  procurable  is 
admissible"  no  evidence  short  of  the  alleged  lunatic's  or 
alleged  incompetent's  personal  appearance  in  Court  or 
before  a  Committee  of  the  Commission  as  well  as  of  the 


287 


jury  can  be  the  best  evidence  jtroeiirahle  of  said  allei^ed 
lunatic's,  or  said  allej^ed  incompetent's  mental  and  phy- 
sical condition.  It  seems  palpable  euouiih  that  the  best 
evidence^  as  to  said  alle<T:,ed  lunatic's  or  said  alleged  in- 
i'onipeteut's  mental  sanity  and  mental  c«)mi)etency  should 
be  the  mental  evidence  thereof  in  each  said  instance.  It 
also  seems  palpable  enough  that  said  mental  evidence  of 
said  alleged  lunatic's  and  said  alleged  incompetent's  men- 
tal sanity  and  nu^ntal  competency  4s  the  only  real  evi- 
dence procurable  in  said  premises.  All  other  evidence 
being  secondarv  and  in  the  nature  of  liearsav.  For  in- 
stance :  ^>uppose  the  (juestion  were  in  a  suit  concerning 
danuiges  recoverable  through  carelessness  proved  by  the 
breaking,  on  a  train  in  transit,  of  a  bolt.  Undoubtedlv 
the  production  in  court  of  said  bolt  through  whose  al- 
leged fracture  said  accident  is  alleged  to  have  occurred 
is  the  only  real  evidence  and  therefore  the  best  evidence 
as  to  said  alleged  fracture.  In  the  same  way  said  "best 
evidence''  rule  is  in  operation  where  a  written  instru- 
ment is  at  issue.  In  said  case  said  instrument  itself  is 
better  evidence  of  the  contents  of  said  instrument  than 
statements  concerning  said  contents  made  by  persons 
under  oath,  and  the  latter  would  be  inadmissible  until 
either  said  instrument  is  produced  or  said  instrument's 
absence  accounted  for.  To  conclude  said  point  we  ap- 
pend the  following: 

State  V.  (SoodiriU,  25  Am.  St.  Rep.  870  (W.  Virginia, 
Nov.,  1889). 

The  liberty  of  each  person  and  his  right  to  acquire 
AND  RETAIN  PROPERTY  must  always  be  considered  in  con- 
nection with  the  rights,  liberties  and  welfare  of  others, 
and  each  person  must  submit  to  such  reasonable  restric- 
tions as  must  necessarily  be  imposed  for  the  better  pro- 
tection of  the  whole  community,  and  even  for  the  protec- 


288 


tioii  of  ji  particular  class,  and  it  will  hence  always  be 
difficult,  if  not  impossible,  to  deline  or  prescribe  any 
precise  test  from  which  to  determine  with  unvarying 
certainty'  what  restrictions  upon  the  liberty  of  indivi- 
duals, or  of  classes  of  individuals,  are  sustainable  and 
what  are  not.  While  the  courts  proi^erl}^  hestitate  to 
formulate  definitions  of  liberty  and  of  due  process  of 
law,  or  to  oive  enumerations  of  all  that  mav  be  conceded 
to  one  person  or  denied  to  another  without  denying  to 
"any  person  the  equal  protection  of  the  laws,"  yet  they 
have,  in  some  instances,  given  general  descriptions  or 
definitions  which,  while  not  intended  to  be  applicable 
under  all  circumstances,  are  usually  applicable,  and 
therefore  worthy  of  restatement  here.  Thus  it  was  said 
in  People  v.  Oinsoii,  109  N.  Y.  389,  4  Am.  St.  Rep.  465: 
"The  following  propositions  are  firmly  established  and 
recognized  :  A  person  living  under  our  Constitution  has 
the  right  to  adopt  and  follow  such  lawful  industrial  pur- 
suit, not  injurious  to  tlie  community,  as  he  may  see  fit. 
The  term  'liberty,'  as  used  in  the  Constitution,  is  not 
dwarfed  into  mere  freedom  from  physical  restraint  of  the 
person  of  the  citizen,  as  by  incarceration,  but  is  deemed 
to  embrace  the  right  of  man  to  be  free  in  the  eniovi\ient 
of  the  faculties  with  which  he  has  been  endowed  by  his 
Creator,  subject  oulv  to  such  restraints  as  are  necessary 
for  the  common  welfare.  Libei'ty,  in  its  broad  sense,  as 
understood  in  this  country,  means  the  right  not  only  of 
freedom  from  servitude,  imprisonment,  or  restraint,  but 
the  right  of  one  to  use  his  faculties  in  all  lawful  ways, 
to  live  and  work  where  he  will,  to  earn  his  livelihood 
in  any  lawful  calling,  and  to  pursue  any  lawful  trade  or 
avocation."  "The  common  business  and  callings  of  life, 
the  ordinary  trades  and  pursuits,  a\  hich  are  innocuous 
in  themselves,  and  have  been  followed  in  all  countries 
from  time  immemorial,  must  therefore  be  free  in  this 


289 

country,  to  all  alike,  upon  the  same  conditions.  The 
right  to  pui-siie  them  A\ithout  let  (»r  hiiidiance,  except 
that  which  is  im])lie(l  to  all  persons  of  the  same  sex,  ai>e, 
and  condition,  is  a  distiniiuishing  privilege  of  the  citizens 
of  the  United  States,  and  an  essential  element  of  that 
freedom  which  they  claim  as  their  birthright.  *  *  * 
Civil  liberty  exists  only  where  every  individual  has  the 
power  to  pursue  his  own  happiness  according  to  his  own 
views,  unrestrained,  except  by  ecpml,  just  and  impartial 
laws."  Hiitcliers'  VMioii  Co.  v.  Crescent  City  Co.,  Ill 
U.  S.  757. 

IJeal  Evidexcl^. 

Real  eridencc  is  such  evidence  of  the  th'uig  or  object 
as  is  aihlrcs.^ed  directlij  to  the  senses  of  the  court  or  jury 
iritJiout  the  intervention  of  the  testimony  of  witnesses, 
as  irhere  rariou.s  thinys  are  c.rhihiied  in  open  court. 

When,  for  instance,  the  condition  or  appearance  of 
any  thing  or  object  is  material  to  the  issue,  and  the  thing 
or  object  itself  is  produced  in  court  for  the  inspection 
of  the  tribunal,  with  the  proper  testimony  as  lo  its  iden- 
tity, and  if  necessary  to  shoAv  that  it  has  existed  in  this 
State  since  the  time  at  which  the  issue  in  question  arose, 
this  object  or  thing  becomes  itself  "real  evidence"  of  its 
condition  or  appearance  at  the  time  in  question. 

Gaunt  v.  ^tate,  50  N.  J.  L.  49 J ,  where  resemblance  of  a 
child  to  alleged  father  was  material  to  the  issue,  and 
the  child  was  in  court,  Held,  not  error  for  the  court 
to  refuse  to  charge  the  jury  that  they  must  not  consider 
the  question  of  resend)lance  at  all,  and  that  if  they  did 
consider  it,  it  must  be  from  verbal  testimony,  not  from 
view. 

As  a  class,  resemblances  are  admitted  wherever  rele- 

(19) 


290 


vant.  Ill  cases  involviiig  luiiidwritiiig  a  comparisou  of 
hands  is  pertinent.  In  sales  of  samples,  in  patent  cases, 
in  trade-mark  and  infringement  suits  reseml>lance  is  of 
the  essence  of  the  proof.  In  New  Yorlv  State  operas  have 
been  performed  in  court,  comic  songs  sung,  and  plagiaries 
of  papers  read.  In  Pennsylvania  a  contrivance  called  the 
Keeley  Motor  was  exhibited  with  a  ^'ie^^•  to  the  deter- 
mination of  the  resemblance  to  a  model  described  in 
plaintiff'^.  IpII. 

In  Garvin  v.  State,  52  Miss.  207,  indictment  rested  on 
the  ground  that  defendant  was  a  colored  man.  Of  this 
there  was  no  proof,  but  as  the  defendant  had  been  before 
the  jury  the  court  held  that  their  inspection  did  away 
with  the  necessity  of  proof. 

Jones  V.  'I ones,  45  Md.,  148,  the  Court  permitted  the 
jury  to  judge  as  to  personal  resemblances. 

Mulhado  v.  Brookli/n  City  R.  R.,  30  N.  Y.  ( (^ourt  of 
Appeals),  370,  held  in  action  to  recover  damages  for 
personal  injuries  that  there  could  be  no  valid  objec- 
tion to  exhibition  of  injured  limb  before  the  jury. 

Other  instances  of  real  evidence,  exhibitions  of  weap- 
i3iis,  or  missiles,  marks  of  identity,  race,  color,  age, 
sex,  models,  diagram,  maps,  photographs,  situs  of  ac- 
tion, &c. 

As  has  been  said  above :  "Real  evidence  is  such  evi- 
dence of  the  thing  or  object  as  is  addressed  directly 
to  the  senses  of  the  court  or  jury  without  the  interven- 
tion of  the  testimony  of  witnesses."    *     *     * 

'^^Wlieyi,  for  instaywe,  the  eondition  or  appearance  of 
any  iJiing  or  object  is  material  to  the  issue,  and  the 
thiny  or  object  itself  is  p^'odiiced  in  court  for  the  in- 


291 


spection  of  the  tribunal,  with  the  proper  testimony  as 
to  its  identity,  and  if  necessary  to  shoio  that  it  has  ex- 
isted in  this  State  since  the  time  at  which  the  issue  in 
question  arose,  this  object  or  thine/  becomes  itself  'real 
evidence'  of  its  condition  or  appearance  at  the  time  in 
question." 

It  seems  equally  patent  that  when  an  alleged  lunatic 
or  an  alleged  incompetent  asserts  that  said  alleged 
lunatic  or  said  alleged  incompetent  is  physically  in- 
capacitated from  coming  to  Court  and  presenting  him- 
self before  said  Commission  and  said  jury  it  seems 
equally  patent  that  in  said  case  the  only  real  evidence 
and  ergo  the  best  evidence  concerning  said  alleged  physi- 
cal disability  would  be  an  examination  upon  the  part 
of  said  Commission  and  said  jury  or  a  Committee  made 
up  of  their  respective  members  of  said  alleged  lunatic 
or  said  alleged  incompetent  in  said  alleged  lunatic's  or 
said  alleged  incompetent's  i)lace  of  confinement.  Sup- 
pose an  expert  in  lunacy  or  two  experts  in  lunacy,  hired 
by  the  other  side,  swear  that  said  defendant  says  said 
defendant  is  unable  to  attend  court  owing  to  a  broken 
leg  but^said  experts — swear  said  broken  leg  is  a  ''de- 
lusion'' and  does  not  exist  in  fact.  Would  it  be  heard 
that  such  said  oaths  could  outweigh  the  weight  of  visible 
proof  concerning  said  fracture  of  said  limb? 

Point  15.  Plaintiff's  sanity  at  the  time  of  arrest  is 
pro^d  by  ])laintiff's  letter  to  Hon.  Micajah  Woods, 
dated  July  3rd,  1897 :  upon  Mr.  Justice  Harlan's  opin- 
ion in  the  Runk  case  which  holds  that  a  written  instru- 
ment by  a  person  accused  of  insanity  may  successfully 
offset  prima  facie  evidence  of  insanity. 


292 


(From   Trial  Brief  of  Chaloner  against  Shermayi,  pp. 

482-495.) 

TWO  EXCERPTS  FROM  THE  TEXT  OF  MR.  JUS- 
TICE HARLAN'S  OPINION  IN  THE  RUNK 

CASE. 

SUPREME  (;OURT  OF  THE  UNITED  STATES. 

No.  142 — October  Term^  1897. 

A.  Howard  Ritter,  Executor  of      \  On  a  Writ  of  Cer- 

Williani  M.  Riink,  deceased,         I      tiorari    to    the 

Plaintiff-in-error,  I      United    States 

V.  (        Circuit  Court  of 

The  Mutual  Life  Insurance      \      Appeals    for    the 

Company  of  New  York.  /       Third  Circuit. 

(January  17,  1898.) 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  Court : 

*  *  *  ''Besides  these  facts,  it  appeared  that 
on  the  day  before  his  death  he  avowed  that  his 
debts  must  be  paid,  and  that  they  could  only  be 
paid  with  his  life.  That  avowal  was  in  a  letter  writ- 
ten to  his  partner,  in  which  he  said  that  he  had 
deceived  the  latter,  and  could  only  pay  his  debts 
with  his  life.     That  letter  concluded : 

"  'This  is  a  sad  ending  of  a  promising  life,  but 
I  deserve  all  the  punishment  I  may  get,  only  I 
feel  my  debts  must  be  paid.  This  sacrifice  will 
do  it,  and  only  this.  I  was  faithful  until  two 
years  ago.    Forgive  me.    Don't  publish  this.'    On. 


293 


the  same  day  he  wrote  to  his  aunt,  to  whom  he 
was  indebted  in  a  large  sum,  saying,  among  other 
things :  'Forgive  me  for  the  disgrace  1  bring  up- 
on you,  but  it  is  the  only  way  I  can  pay  my  in- 
debtedness to  vou/  In  addition  he  left  for  the 
iiuidance  of  his  Executor  a  memorandum  of  his 
business  affairs  prepared  just  before  his  death, 
and  which  tended  to  show  that  he  was  at  that 
time  entirely  himself. 

"In  view  of  these  and  other  facts  established 
by  the  evidence,  the  Court  did  not  err  in  dis- 
afftrming  the  first  and  second  of  plaintitt''s  points. 
We  may  add  to  that,  under  the  charge  to  the  jury, 
it  became  unnecessary  for  them  to  inquire 
whether  the  policies  were  taken  out  with  the  in- 
tention of  defrauding  the  insurance  company  or 
of  committing  suicide.  The  Court  said  to  the 
jury: 

"  'What  constitutes  insanity,  in  the  sense  in 
which  we  are  using  the  term,  has  been  described 
to  you,  and  need  not  he  repeated.  If  this  man 
understood  the  consequences  and  effects  of  what 
he  was  doing  or  contemplating,  to  himself  and 
to  others,  if  he  understood  the  wrongfulness  of  it, 
as  a  sane  man  would,  then  he  was  sane,  so  far  as 
we  have  occasion  to  consider  the  subject;  other- 
wise he  was  not.  Here  the  insured  committed 
suicide,  and,  as  the  evidence  shows,  did  it  for  the 
purpose  as  expressed  in  his  communication  to  the 
Executive  of  his  will,  as  well  as  in  letters  writ- 
ten to  his  aunt  and  his  partner,  of  enabling  the 
Executor  to  recover  on  the  policies  and  use  the 
money  to  pay  his  o])ligations.  I  therefore  charge 
you  that  if  he  was  in  a  sane  condition  of  mind 
at  the  time,  as  I  have  described,  able  to  under- 
stand the  moral  character  and  consequences  of 


294 


bis  act,  his  suicide  is  a  defense  to  this  suit.  The 
only  question,  therefore,  for  consideration  is  the 
question  of  sanity.  There  is  nothing  else  in  the 
case.  That  he  committed  suicide  and  committed 
it  with  a  view  to  the  collection  of  this  money  from 
the  insurance  companies  and  having  it  applied  to 
the  payment  of  his  obligations,  is  not  contro- 
verted, and  not  controvertible.  It  is  shown  by  his 
own  declaration,  possibly  not  verbal,  but  writ- 
ten. The  only  question,  therefore,  is  whether  or 
not  he  was  in  a  sane  condition  of  mind,  or  whether 
his  mind  was  so  impaired  that  he  could  not,  as 
I  have  described,  properly  comprehend  and  un- 
derstand the  character  and  consequences  of  the 
act  he  was  about  to  commit.  In  the  absence  of 
evidence  on  the  subject  he  must  be  presumed  to 
have  been  sane.  The  presumption  of  sanity  is  not 
overthrown  by  the  act  of  committing  suicide.'  " 

The  said  Runk  had  been  guilty  of  what  any  expert 
in  insanity  would  denominate  the  act  of  a  madman, 
under  the  plea  that  suicide  is  the  act  of  a  man  suffer- 
ing from  "suicidal  mania."  The  Court  below  agreed  in 
said  presumptive  evidence  of  insanity,  which  is  fur- 
nished bv  the  act  of  suicide.  Said  Court  said,  to  wit : 
"Suicide  may  be  used  as  evidence  of  insanity."  Mr. 
Justice  Harlan  affirmed  said  dictum  of  said  lower  Court 
by  saying,  to  wit :  "Nothing  said  by  the  Court  upon  the 
question  of  insanity  was  erroneous  in  law."  Ergo,  Mr. 
Justice  Harlan  held 'that  the  act  of  suicide  is  prima 
facie  evidence  of  insanity.  But  Mr.  Justice  Harlan  also 
agreed  with  said  lower  Court  in  holding  that  said  prima 
facie  evidence  of  insanity  might  be  offset.  Mr.  Justice 
Harlan  agreed  with  said  lower  Court  that  said  prima 
facie  evidence  of  insanity  might  he  of  set  hy  ivhatf     By 


295 

expert  testiinony  to  the  contrnrt/?  By  sworn  allega- 
tions by  eye  ivitnesses  to  the  contrary  f  No.  By  a  far 
simpler,  by  a  far  surer  means,  to  irit:  By  the  acts  of  said 
alleged  insane  person's  mind,  as  shown  by  a  written 
instrument  upon  the  part  of  said  alleged  insane  person: 
By  a  letter  in  short. 

Said  Kinik  had  written  a  letter  to  said  Kimk's  busi- 
ness partner  and  to  said  Rnnk's  aunt  toucliini-  npon  the 
motive  of  said  snicide,  as  well  as  a  business  memorandum 
to  said  partner.  As  nothini>  to  the  contrary  is  alleged 
it  may  be  presumed  that  said  letters  and  said  memo- 
randum were  rather  brief,  or  at  least  nothing  compara- 
ble for  length  with  said  letter  written  l)y  plaintiff  to  said 
Hon.  Micajah  Woods,  July  3rd,  1897,  within  less  than 
four  months  from  the  time  of  plaintiff's  arrest  and  im- 
prisonment as  a  lunatic  in  said  Society  of  the  New  York 
Hospital  at  White  Plains,  and  almost  four  years  before 
plaintiff  was  able  to  escape  from  said  false  imprison- 
ment.     (Transcript  of  Record,  folios  306-339.) 

Furthermore.  It  may  be  presumed  that  said  two  let- 
ters and  memorandum  upon  the  part  of  said  Runk  were 
necessarily — from  their  said  rather  brief  nature — far 
less  sustained  specimens  of  argument  and  memory  than 
said  letter  of  plaintiff"  presented. 

Said  letter  of  plaintiff  was  over  thirty  pages  of  type- 
writing in  length.  Said  letter  of  plaintiff  contained  an 
exhaustive  examination  of  the  causes  which  led  up  to 
plaintiff's  arrest  and  incarceration  upon  a  false  and 
perjured  charge  of  lunacy,  besides  an  exhaustive  ac- 
count of  plaintiff's  business  affairs  directly  connected 
therewith,  besides  a  legal  discussion  of  plaintiff's  status 
and  plans  for  legal  redress,  which  said  plans  were  car- 
ried out,  almost  to  the  letter,  by  plaintiff  years  later, 
upon  plaintiff's  escape.  Furthermore,  said  letter,  which 
was  written  by  plaintiff  by  hand  in  ink,  is  presumptive 


290 


proof,  of  the  strongest,  of  plaintiff's  entire  sanity  and 
self-control  at  the  time  of  the  writing  thereof.  Hand- 
writing is  a  prolific  proof  of  unsoundness  of  mind.  The 
"paretic  tremor"  is  a  technical  phrase  employed  by 
alienists  to  describe  the  shakiness  of  handwriting  upon 
the  part  of  a  certain  class  of  lunatics.  Moreover,  luna- 
tics show  their  lack  of  balance  in  their  chirography,  by 
the  untidiness  thereof,  tlie  meaningless  flourishes  there- 
in, the  slovenliness  of  the  formation  of  the  characters, 
and  the  general  wild  look  of  the  written  page.  Nothing 
of  the  sort  is  discoverable  in  plaintiff's  said  letter  of 
July  3rd,  1.S97.  There  is  no  sign  of  tremor.  There  is 
no  sign  of  slovenliness.  There  is  not  a  single  blot,  not  a 
single  erasure,  nor  a  single  word  crossed  out.  Consider- 
ing the  circumstances  under  which  said  unusually 
lengthy  letter  was  written,  namely,  secretly,  at  night, 
wiWi  a  ke(^per  in  the  next  cell,  and  another  on  watch 
- — or  supposed  to  be — outside  said  cell's  door,  consider- 
ing said  circumstances  plaintiff  maintains  that  such  a 
performance  in  penmanship  was  a  feat  any  man  not  a 
teacher  of  handwriting  might  feel  proud  of.  Further- 
more. Said  letter  furnishes  proof  in  al)un<lance  of  one 
of  the  strongest  proofs  of  sanity,  namely,  memory.  Said 
letter  goes  as  far  back  as  188S  in  tracing  the  causes  of 
the  family  feud.  Said  letter  goes  most  minutely  into 
the  business  occurrences  at  the  Hotel  Kensington,  New 
York,  December,  1890,  which  led  up  to  plaintiff's  said 
false  arrest  and  false  im])risonment,  upon  a  false  charge 
of  lunacy,  a  few  weeks  later. 

Fortunately  for  plaintiff',  plaintiff  had  kept  the  origi- 
nal* of  Uic  letters:  Letter  from  a  female  relative  of 
plaintiff",  to  i)laintiff,  under  date  June  23rd,  1888,  signed 
— Daisy:  Two  of  said  letters  are  from  plaintiff's  said 


*0n  file  in  Chaloner  against  Sherman. 


297 

brother,  Mr.  Wintlirop  Astor  (Mianler,  to  said  sister  of 
plaintiff  under  date  June  IDtli,  and  June  22nd,  1888, 
signed  W.  The  hist  of  said  letters  is  from  said  Mr.  Win- 
throp  Astor  (Miaider  to  plaintiff'  under  date  June  21st, 
1888,  signed — \V.  received  by  plaintiff  as  far  back  as 
June,  1888,  which  amply  prove  the  ill-feelini;  engendered 
by  plaintiff's  said  wedding  in  said  month  and  year.  The 
fact  that  plaintiff  accurately  stated  said  ill-feeling's 
date,  corroborated  as  said  date  and  said  ill-feeling  are 
by  said  letters,  is  ampler  proof  of  plaintiff's  power  and 
accuracy  of  memory.  Said  letters,  of  course,  were  in 
plaintiff's  despatch  box  at  plaintiff's  home  in  Virginia 
at  the  time  of  plaintiff's  arrest  and  imprisonment,  and 
at  all  other  times  until  plaintiff"  escaped  to  Virginia  and 
recovered  them. 

Furthermore.  Trutlifulness  is  not  a  sign  of  insanity, 
in  fact  trutlifulness  is  «iuite  the  reverse.  Insanity  is 
€ven  more  prolific  of  untruthfulness  than  many  persons' 
sanity.  Not  a  single  material  statement  made  by  plain- 
tiff' in  said  letter  has  failed  of  endorsement  by  proof 
since  i)laintiff's  escape. 

The  letter  from  the  late  Sylvester  J.  O'Sullivan,* 
formerlv  New  York  manager  of  "The  United  States 
Fidelity  and  Guaranty  Company,"  66  Liberty  St.,  New 
York,"  proves  plaintiff"s  assertion  that  plaintiff  never 
^^•as  a  resident  of  said  Hotel  Kensington,  particularly 
not  in  1896  and  1897,  since  said  O'Sullivan  was  the 
proprietor  of  said  Hotel  Kensington  from  April,  1894, 
to  April,  1897. 

If  two,  presumably  brief,  notes  and  a  business  memo- 
randum offset  the  actual  undoubted  presence  of  pre- 
sumptive proof — suicide — of  insanity  in  the  case  of  the 
unfortunate  Kunk,  how  much  more  should  such  a  let- 
ter as  that  of  plaintiff  offset,  not  so  strong  a  thing  as 

*0n  file  in  Chaloner  against  Sherman. 


298 

presumptive  proof,  but  so  fishy  a  thing  as  the  bought 
and  paid  for  affidavits  of  two  professional  Examiners- 
in-Lunacv?  In  conclusion :  A  further  written  instru- 
ment  upon  the  part  of  plaintiff — the  extract  from  plain- 
tiff's said  letter  to  said  "first  New  York  lawyer" — under 
date  of  ^larch  26th,  1900 — proves  plaintiff  to  be  pos- 
sessed of  almost  prophetic  powers  of  observation:  for 
plaintiff  therein  describes  the  dishonesty  of  the  then 
New  York  State  Commission  in  Lunacy,  and  in  less 
tlian  twelve  months  from  date,  President — then  Gover- 
nor— Roosevelt  had  removed  the  President  of  said  Com- 
mission from  office  owing  to  charges  preferred  and 
proved  against  said  President. 

Plaintiff'  maintains  that  sanity  is  proved  by  what 
a  person  can  do  with  said  person's  mind.  That  sane 
fJiinkinr/  is  a  proof  positive — the  ultimate  and  final  test 
— of  sauitji. 

To  refer  once  more  to  Mr.  Justice  Harlan's  said 
opinion,  (juoting  the  lower  Court: 

"Suicide  may  be  used  as  evidence  of  insanity, 
but  standing  alone  it  is  not  sufficient  to  establish 
it  *  *  *.  If  you  find  him  to  have  been  in- 
sane, as  I  have  described,  your  verdict  will  be  for 
the  plaintiff,  otherwise,  it  will  be  for  the  defen- 
dant." 

Tt  thus  appears  that  the  case  was  placed  before  the 
jury  upon  the  single  issue  as  to  the  alleged  insanity  of 
the  assured,  at  the  time  he  committed  suicide,  and  with 
a  direction  to  find  for  the  plaintiff  if  the  assured  was 
insane  at  that  time,  and  for  the  company  if  he  was  then 
of  sound  mind. 

Assuming  that  the  jury  obeyed  the  instructions  of 
the  Court,  their  verdict  must  be  taken  as  finding  that 


299 


the  assurpfl  was  not  insane  at  the  time  he  took  his  life. 
We  must  then  inquire  whether  the  observations  of  the 
Trial  Court  on  the  subject  of  insanity  were  liable  to 
objection. 

We  have  seen  that  the  plaintiff  asked  the  Court  to 
instruct  the  jury  that  if  the  assured  intentionally  killed 
himself  when  his  reasoning  faculties  were  so  far  im- 
paired by  insanity  that  he  was  unable  to  understand  the 
moral  character  of  his  act,  even  if  he  did  understand 
its  physical  nature,  consequences  and  effect,  such  self- 
destruction  would  not  of  itself  prevent  recovery  upon 
the  policies. 

This  was  the  only  instruction  asked  by  the  plaintiff 
which  undertook  to  define  insanity,  and  as  before  stated, 
it  was  given  by  the  Court.  But  in  giving  it  the  Court 
said : 

"We  must  understand  what  is  meant  and  in- 
tended by  the  term  'moral  character  of  his  act.' 
It  is  a  point  whicli  has  been  used  by  the  Courts, 
and  is  correctly  inserted  in  the  term ;  but  it  is  a 
term  which  might  be  misunderstood.  We  are  not 
to  enter  the  domain  of  metaphysics  in  determining 
what  constitutes  insanity,  so  far  as  tlie  subject 
is  involved  in  this  case.  If  Mr.  Runk  understood 
what  he  was  doing,  and  tlie  consesiuences  of  his 
act  or  acts,  to  himself  as  well  as  to  others — in 
otlier  words,  if  he  understood,  as  a  man  of  sound 
mind  would,  the  conse(|uences  to  follow  from  his 
(•(mtemplated  suicide,  to  himself,  his  character, 
his  family,  and  others,  and  was  able  to  compre- 
hend the  wrongfulness  of  wliat  he  Avas  about  to 
do,  as  a  sane  man  would — then  lie  is  to  be  re- 
garded bv  vou  as  sane.     Otherwise  he  is  not." 


o 


00 


Substantially  the  same  observations  were  made  in  that 
part  of  the  charge,  \\'hich  is  above  given. 

The  plaintiff  insists  that  the  definition  of  insanity,  as 
given  by  the  Trial  Court,  was  much  narrower  than  was 
required  or  permitted  by  the  decisions  of  this  Court. 
It  is  said  that  the  inij^airment  not  only  of  the  moral 
vision,  but  also  of  the  will,  leaving  the  deceased  in  a 
condition  of  inability  to  resist  the  impulse  of  self-destruc- 
tion, has  been  accepted  by  this  ('ourt  as  describing  a 
phase  of  insanity  or  mental  unsoundness.  One  of  the 
cases  to  which  plaintiff  referred  in  support  of  this  view 
is  Davis  r.  United  States,  1G5  TJ.  S.,  373,  378,  which  was 
a  prosecution  for  murder.  It  was  there  held  that  the  ac- 
cused was  not  prejudiced  by  the  following  instructions 
given  to  the  jury:  '"The  term  insanity,  as  used  in  this 
defense  means  such  a  perverted  and  deranged  condition 
of  the  mental  and  moral  faculties  as  to  render  a  person 
incapable  of  distinguishing  between  right  and  wrong, 
or  unconscious  at  the  time  of  the  nature  of  the  act  he 
was  committing;  or  wliere,  though  conscious  of  it  and 
able  to  distinguish  between  right  and  wrong,  and  know 
that  the  act  is  wrong,  yet  his  will,  by  which  I  mean  the 
governing  power  of  his  mind,  has  been  otherwise  than 
voluntarily  so  completely  destroyed  that  his  actions  are 
not  subject  to  it,  but  are  beyond  his  control."  This  was 
substantially  what  had  been  held  by  this  court  in  pre- 
vious cases.  Life  Ins.  Co.  v.  Terry,  15  Wall,  580;  Bige- 
low  r.  Berkshire  Ins.  Co.,  93  IT.  S.  284;  Insurance  Co.  r. 
Rodel,  95  U.  S.  232;  Manhattan  Ins.  (^o.  ?;.  Broughton, 
109  U.  S.  121;  Connecticut  Ins.  (^o.  r.  Lathrop,  111  U. 
S.  612;  Accident  Ins.  Co.  r.  Crandall,  120  U.  S.  527.  In 
Terry's  case  above  cited — which  was  an  action  upon  a 
life  policy  declaring  the  policy  void  if  the  assured  died 
by  Ids  own  liand — it  became  necessary  to  instruct  the 
jury  on  the  sul)iect  of  insanity.     The  Court  said:     "We 


301 


hold  the  nile  on  tho  (|uestion  before  us  to  be  this:  If  the 
assured,  beiiiji,  in  the  possession  of  his  ordinary  reason- 
ing faculties,  from  anf;er,  pride,  jealousy,  or  a  desire  to 
escape  from  the  ills  of  life,  iutentionally  takes  his  own 
life,  the  proviso  attaches,  and  there  can  be  no  recovery. 
If  the  death  is  caused  bv  the  voluntarv  act  of  the  as- 
sured,  he,  knowing-  and  intending  that  his  death  shall 
be  the  result  of  his  act,  but  when  his  reasoning  faculties 
are  so  impaired  that  he  is  not  able  to  understand  the 
moral  character,  the  general  nature,  consecjuences,  and 
effect  of  the  act  he  is  about  to  commit,  or  when  he  is 
impelled  thereto  by  an  insane  impulse  which  he  has  not 
the  power  to  resist,  such  death  is  not  within  the  con- 
templation of  the  parties  to  the  contract,  and  the  insurer 
is  liable." 

Recurring  to  the  ruling  of  the  court  in  the  present 
case,  it  is  not  perceived  that  the  plaintiff  had  any  ground 
to  complain  that  its  definition  of  insanity  was  too  strict 
or  too  narrow.  His  fifth  point,  in  general  terms,  defined 
insanity  as  being  a  condition  in  which  the  reasoning 
faculties  are  so  far  impaired  that  the  person  alleged  to 
be  insane  when  committing  self-destruction  was  un- 
able to  understand  the  moral  nature  of  his  act,  even  if 
he  understood  its  physical  nature.  This  definition  was 
not  rejected.  On  the  contrary,  it  was  accepted,  the 
court  at  the  time  nuiking  some  observations  deemed 
necessary  to  show  what,  in  law,  was  meant  by  the  words 
"moral  nature  of  his  act."  Bv  these  observations  the 
iurv  were  informed  that  if  the  assured  understood  what 
*  he  was  doing,  and  the  consequences  of  his  act  or  acts 
to  himself  and  to  others — that  is,  if  he  understood,  as  a 
man  of  sound  mind  would,  the  consequences  to  follow 
from  his  contemplated  suicide,  to  himself,  his  character, 
his  family,  and  others,  and  was  able  to  comprehend  the 
wrongfulness  of  what  he  was  about  to  do,  as  a  sane  man 


302 

would — then  he  was  to  be  regarded  as  sane;  otherwise, 
not. 

It  is  suggested  that  the  attention  of  the  jury  should 
have  been  brought  speciiicallj^  or  more  directly  to  the 
fact  that  unsoundness*  of  mind  exists  when  there  is  an 
impulse  to  take  life  which  weakened  mental  and  moral 
powers  can  not  withstand — a  condition  in  which  there 
is  no  continued  existence  of  a  governing  will  strong 
enough  to  resist  the  tendency  to  self-destruction.  But 
the  words  of  the  charge,  although  of  a  general  character, 
substantially  em})odied  these  views.  The  Court  stated 
the  principal  elements  of  a  condition  of  sanity  as  con- 
trasted with  insanity.  What  it  said  was  certainly  as 
specific  as  the  instruction  asked  by  the  plaintiff.  If 
the  plaintiff  desired  a  more  extended  definition  of  in- 
sanity than  was  given,  his  wishes,  in  that  respect,  should 
have  been  made  known.  The  court  having  affirmed  his 
view  of  what  was  evidence  of  insanity,  and  such  affirm- 
ance having  l)een  accompanied  by  observations  that 
brought  out  with  more  distinctness  and  fullness  what 
was  meant  by  the  words  "moral  character  of  his  act," 
the  plaintiff  has  no  ground  to  complain ;  for  nothing  said 
by  the  court  upon  the  question  of  insanity  was  erro- 
neous in  law  or  inconsistent  with  that  which  the  plain- 
tiff asked  to  be  embodied  in  the  charge.  No  error  of 
law  having  been  committed  in  respect  to  the  issue  as 
to  the  insanity  of  the  assured,  it  is  to  be  taken  as  the 
result  of  the  verdict  that  he  was  of  sound  mind  when 
he  took  his  life." 

Mr.  Justice  Harlan  says:  "In  addition  (to  the  said 
letter  written  by  said  Hunk  to  said  Runk's  partner, 
and  the  said  letter  written  by  said  Runk  to  said  Runk's 
aunt)  lie  left  for  the  f/iiidance  of  his  executor  a  memo- 
randum of  his  business  affairs,  prepared  just  before  his 
death,  and  tvhich  tended  to  show  that  he  was  at  that 


303 


time  entirely  at  himself.'^  Mr.  Justice  Harlan  says 
further:  ''The  Court  stated  the  principal  elements  of 
a    condition    of    sanity    as    contrasted    with    insanity. 

*  *  *  Xothing-  said  by  the  Court  upon  the  ques- 
tion of  insanity  was  erroneous  in  law.  *  *  *  >^^o 
error  of  law  having  been  committed  in  respect  of  the 
issue  as  to  the  insanity  of  the  assured,  it  is  to  be  taken 
as  the  result  of  the  verdict  that  he  was  of  sound  mind 
when  he  took  his  life."  We  now  insert  what  said  Court 
said  constituted  sanity  as  opposed  to  insanity :  "What 
constitutes  insanitv  in  the  sense  in  which  we  are  nsina: 
the  term,  has  been  described  to  you,  and  need  not  be  re- 
peated. If  this  man  understood  the  consequences  and 
effects  of  Avhat  he  was  doing  or  contemplating,  to  him- 
self and  to  others,  if  he  understood  the  wrongfulness 
of  it,  as  a  sane  man  would,  then  he  was  sane,  so  far  as 
we  have  occasion  to  consider  the  subject.  *  *  *  j 
therefore  charge  you  that  if  he  was  in  a  sane  condition 
of  mind  at  the  time,  as  I  have  described,  able  to  under- 
stand the  moral  character  and  consequences  of  his  act, 
his  suicide  is  a  defense  to  this  suit.  The  only  question, 
therefore,  for  consideration  is  this  question  of  sanity. 
There  is  nothing  else  in  the  case." 

A  perusal  (»f  the  above  will  prove  that  the  Supreme 
Court  of  the  United  States  supports  plaintiff's  afore- 
said contention  in  this  point. 

Plaintiff  maintains  that  sanity  is  shown  by  the  action 
of  a  party's  mind,  not  by  the  action  of  a  party's  muscles. 
Plaintiff'  maintains  that  sanity  is  shown  by  a  party's 
words  and  acts,  rather  than  by  the  "reflexes"  of  a  party's 
knee-joints.  Plaintiff  maintains  that  sanity  is  shown 
by  a  party's  ideas  rather  than  by  involuntary  action  of 
a  party's  eyelids.  Plaintiff  maintains  that  sanity  is 
shown  by  the  words  issuing  from  a  party's  lips  rather 
than   by   the   mechanical   action   of   the   party's   labial 


304 


muscles.     Plaintiff  maintains  that  sanity  is  shown  by 
the  Avoids  uttered  by  a  party's  toniiue  rather  than  by 
the    (juestion    as    to    whether    the  party's  tongue  was 
''coated"  or    not  ''coated."      Plaintiff    maintains    that 
sanity  is  shown  by  the  action  of  the  party's  hands  as 
to  what  the  part}'  can  do  with  said  party's  hands,  or 
write  with  said  party's  hands  rather  than  as  to  whether 
said  party's  hands  were  warm  or  cold.     Plaintiff  main- 
tains that  sanity  is  shoAvn  by  the  question  as  to  whether 
or  not  said  party's  ideas  are  normal  rather  than  by  the 
question  as  to  whether  or  not  said  party's  pupils  are 
normal.    Plaintiff  maintains  that  sanitv  is  shoAvn  by  the 
quickness  of  said  party's  mind  rather  than  by  the  quick- 
ness   of    said    party's    pulse.     Plaintiff  maintains  that 
sanity  is  shown  by  whether  or  not  said  party's  logical 
and  reasoning  powers  are  tirm  or  tremulous,  rather  than 
as  to  whether  or  not  said  party's  hands  are  firm   or 
tremulous.     Plaintiff  maintains   that  sanity  is  shown 
rather  by  the  question  as  to  whether  or  not  Plaintiff's 
mind  reacts  to  ratiocination  and  questions  put  to  Plain- 
tiff rather  than  by  the  question  as  to  whether  or  not 
said  party's  pupils  re-act  to  light.     Plaintiff  maintains 
that  sanity  is  shown  rather  by  the  fact  as  to  whether 
or  not  a  party  thinks  Avell,  than  b}'  the  fact  as  to  whether 
or  not  a  party  sleeps  well.     Lastly,  plaintiff  maintains 
that  sanity  is  shown  rather  by  the  question  as  to  whether 
or  not  a  party's  reasoning  is  regular,  than  by  the  ques- 
tion as  to  whether  or  not  said  party's  bowels  are  regular. 
What  is  insanity?     Suppose  a  law  should  be  enacted  to 
the  effect  that  certain  acts  or  thoughts  would  be  suf- 
ficient proof  of  mental  derangement,  and  that,  upon  a 
trial,  the  facts  appearing,  the  Court  should  direct  a  ver- 
dict accordingly,  and  property  or  freedom  should  thus 
be  wrested  from  the  defendant.    Would  such  a  proceed- 
ing constitute  due  process  of  law?    And  yet  such  a  pre- 


305 


posterons,  siic-li  a  niechanical,  and  such  a  cliaiiatanisli 
test  of  saiiity  is  today  set  by  so-called  experts  in  in- 
sanity, who  glean  certain  physical,  mechanical,  muscu- 
lar actions,  which  sometimes  follow  insanity,  but  in 
the  vast  majoi-ity  of  cases  exist  as  mere  physical  idio- 
syncrasies, totally  free  from  the  slightest  taint  thereof, 
and — to  use  a  technical  phrase — are  auxiliary,  but  not 
positive.  The  result  of  said  quackery  is  that  the  pub- 
lic is  being  gulled  into  believing  that  insanity  is  hidden 
in  a  grand  arcanum  of  mystery,  to  which  said  grand 
arcanum  only  alleged  experts  in  insanity  hold  the  key, 
which  said  alleged  experts  will  not  turn  without  the 
payment  of  a  fat  fee.  The  result  of  said  (piackery  is 
that  people  lose  sight  of  the  fact  that,  as  has  been  said 
by  the  Court  { supra),  the  citizen  is  the  sovereign,  by 
which  we  mean  that  the  citizen  is  the  final  judge  of 
things  medical  as  well  as  things  practical ;  of  things 
scientific  as  well  as  of  things  simple;  of  things  literary 
as  well  as  of  things  non-literary;  of  things  musical  as 
well  as  of  things  non-musical ;  of  things  finally,  religious, 
and  things  non-religious ;  by  which  we  mean  that  when 
any  of  said  above  domains  of  human  thought  enter  a 
law  court,  it  is  the  sovereign,  it  is  the  plain  citizen,  it 
is  the  juryman  and  not  the  Judge,  and  not  the  counsel, 
and  not  the  experts,  ho iia  pd<\  or  allege<l,  who  pro- 
nounce a  judgment  upon  said  things — upon  the  facts. 
Who  ever  heard  of  a  patent  suit  involving,  say,  the  com- 
position of  a  chemical  substance,  so  technical,  so  com- 
plicated, that  none  but  expert  chemists  could  discuss 
intelligently,  who  ever  heard  of  any  man's  being,  grossly 
illiterate  and  grossly  ignorant  enough  to  claim  that  said 
question  ^^•as  beyond  the  reach  of  solution  in  a  court  of 
law,  and.  therefore,  beyond  the  reach  of  a  jury,  and  yet 
said  grossly  ignorant  and  grossly  illiterate  remark  is 
made  daily  by  intelligent  and  educated  persons  today, 

(-'0) 


30() 


concernino-  insanity;  and  what  is  connnoner  than  to  hear 
a  party  pusiUaniniouslv  liide  himself  when  asked  his 
opinion  as  to  a  party's  mental  condition  by  a  "I'm  not 
an  expert  in  insanity."  The  resnlt  of  said  quackery  is 
that  a  "rowing  danger — growing  abreast  of  the  growth 
of  that  portion  of  the  medical  profession  known  as  ex- 
perts in  lunacy — that  a  growing  danger  menaces  society 
today.  All  that  is  necessary  to  jeopardize  a  man's  lib- 
erty, property,  and  happiness  and  threaten  all  three 
with  life  imprisonment,  is  to  hire  two  unprincipled  al- 
leged experts  in  insanity  to  swear  that  said  party  is 
crazy.  At  once,  said  party's  family  and  friends  fall 
away  from  said  party  as  though  said  party  were  a  leper. 
At  once  said  party's  said  family  and  friends  hold  up 
their  hands  in  superstitious  horror,  and  in  reply  to  said 
party's  modest  claim  that  said  party  is  all  right,  and 
that  said  party  does  not  either  claim  the  things  said 
dishonest  (juacks  swear  said  party  claims,  as  well  as 
that  said  party  does  not  say  the  things  said  dishonest 
quacks  swear  said  party  says,  at  once  said  party's  said 
family  and  said  friends  hold  up  their  hands  in  igorant, 
illiterate  horror,  and  exclaim,  ''Oh,  but  the  doctor  says 
you  do,  and  that  settles  it/' 

We  have  gone  thus  dee])ly  into  said  interesting  and 
entertaining  toi)ic  for  several  reasons.  1.  First,  because 
no  one  is  so  well  posted  upon  said  interesting  and  en- 
tertaining topic  as  ourselves  since  no  one  save  ourselves 
has  had  so  rich  an  opportunity  to  observe  and  ponder 
said  topic  during  nearly  four  years  of  illegal  false  im- 
prisonment. '2.  Hccondli/,  because  while  behind  said 
bars  and  while  so  pondering  over  our  wrecked  life  with 
its  indelible  stigma  of  insanity — for  no  matter  how  false 
the  charge  of  insanity  its  stigma  is  indelible — we  de- 
termined to  do  our  best  to  prevent  a  repetition  of  such 


307 


a  crime  as  has  bcon  perpetuated  ai>aiiist  onraolves  if 
showing-  up  said  crime  from  all  the  points,  from  all  the 
view-points,  from  all  the  angles  said  crime  admits  could 
do  so.  3.  Thirdly,  because  unless  the  public  mind  is 
awakened  to  the  danger  which  threatens  every  member 
of  the  public  without  regard  to  age  or  sex  or  wealth  or 
poverty,  said  band  of  experts  in  insanity  will  go  on 
fattening-  like  vampires  upon  the  heart's  blood  of  inno- 
cent sane  men  and  women. 

In  bidding  farewell  to  said  topic  it  might  not  be  amiss 
to  draw  public  attention  to  the  role  played  therein  by 
the  cream  of  said  Four  Hundred,  so  called.  For  ex- 
ample. As  we  said  under  Point  11 :  "Lunacy  proceed- 
ings in  New  York  State  are  mandatory,  in  derogation 
of  the  common  law  rights,  and  must  therefore  be  strictly 
observed  in  pursuance  of  the  statute.  While  said  com- 
mi  nent  was  in  fact  made  to  The  Society  of  the  New 
York  Hospital,  it  was  not  so  stated ;  the  term  Blooming- 
dale  Asylum  being  used,  an  institution  unknown  to  the 
law.  As  we  showed  further  said  infraction  of  the  man- 
dates of  the  New  York  Legislature  (by  virtue  of  its 
agent,  the  said  State  Commission  in  Lunacy,  as  we  have 
shown,  supra),  said  mandates,  to  wit:  line  156  of  said 
commitment  papers :  "It  is  essential  that  the  official  title 
of  the  institution  should  be  correctly  inserted"  (Tran- 
script of  Record,  p.  113,  fol.  223),  and  again  line  349: 
"Insert,  correctly,  official  title  of  institution,"  and  lastly 
lines  11  and  12,  "The  blanks  should  be  carefully  read 
and  properly  filled  out  to  insure  the  commitment  of  a 
patient"  (  fol.  201 ) .  As  we  have  shown  further  said  iv 
fraction  of  the  mandates  of  the  said  legislature — as 
aforesaid — was  not  once,  not  twice,  but  thrice  repeated 
and  startling  as  it  sounds,  each  time  in  a  different  man- 
ner. The  said  role  of  said  cream  of  said  Four  Hundred 
so  called  so  begins,  to  wit.    Through  said  cream  of  said 


308 


Four  Hiindred's  agent,  said  Medical  Superintendent  of 
said  Society  of  The  New  York  Hospital,  said  cream  of 
said  Four  Hundred  became  particeps  criminis  in  said 
infraction  of  said  mandates  of  the  said  legislature — as 
aforesaid — as  follows :  citing  now  from  Section  62  of  the 
Insanity  Law  of  the  State  of  New  York,  Chapter  545, 
of  the  laws  of  1896 :  "The  superintendent  or  person  in 
charge  of  any  institution  for  the  care  and  treatment 
of  the  insane  may  refuse  to  receive  any  person  upon  any 
such  order,  if  the  papers  required  to  be  presented  shall 
not  comply  with  the  provisions  of  this  section,"  Said 
cream  of  said  Four  Hundred's  said  agent,  said  Medical 
Superintendent  of  said  Society  of  The  New  York  Hos- 
pital should,  in  compliance  with  said  mandate  contained 
in  said  Section  62,  have  refused  to  receive  plaintiff,  see- 
ing that  the  three  gross  infractions  of  said  mandates 
contained  in  line  156  and  349  to  say  nothing  of  lines  11 
and  12  stared  said  cream  of  said  Four  Hundred's  said 
agent,  said  Medical  Superintendent  of  said  Society  of 
The  New  York  Hospital  full  in  the  face  from  said  Com- 
mitment Papers.  The  question  at  once  presents  itself 
to  the  mind  of  an  observer  as  to  whv  said  infractions 
said  gross  infractions  of  said  mandates  were  committed. 
The  answer  is  simple.  In  order  to  avoid  damage  suits 
from  the  army  of  falsely  alleged  lunatics  who  have  in 
the  135  years  during  which  said  Society  of  The  New 
York  Hospital  has  plied  said  Society's  nefarious  trade, 
in  order  to  avoid  suits  for  damages  for  false  imprison- 
ment at  the  outraged  hands  of  said  army  of  falsely  al- 
leged lunatics  who  have,  in  the  past  135  years,  fought 
said  army's  way  to  liberty  by  the  use  of  habeas  corpus, 
in  order  to  avoid  said  damage  suits  said  cream  of  said 
Four  Hundred,  through  said  cream  of  said  Four  Hun- 
dred's said  agent,  deliberately  threw  dust  in  the  pub- 
lic eye  by  allowing  the  false  impression  to  gain  ground, 
until  now  said  false  impression  is  a  deeply  rooted  con- 


309 


viction  in  the  public  mind  that  said  Society  of  The 
New  York  Hospital's  falsely  alleged  ''Bloomingdale" 
has  no  connection  whatever  with  said  Society  or  with  any 
other  Society,  but  is  a  piiblic  institution,  such  as  Belle- 
vue  Hospital,  and  that  Bellevue  Hospital  is  used  to  re- 
ceive poor  lunatics,  whereas  said  falsely  alleged  "Bloom- 
ingdale"  is  used  to  receive  rich  ones.  It  is  easy  to  see 
that  provided  said  false  impression  gets  a  foothold  in 
the  public  mind  there  is  small  chance  of  damage  suits 
at  the  hands  of  said  army  of  falsely  alleged  lunatics 
which  has  successfully  emerged  therefrom,  public  opin- 
ion naturally  presuming  that  a  public  institution  would 
have  no  pecuniary  motive  in  holding  sane  persons  upon 
a  false  charge  of  insanity.  Said  cream  of  said  Four 
Hundred  have  followed  in  the  footsteps  of  said  cream 
of  said  Four  Hundred's  predecessors.  Said  predeces- 
sors would  be  pleased  could  said  predecessors  see  with 
what  success  said  predecessors'  scheme  to  hoodwink 
and  bamboozle  the  public  has  worked.  It  is  an  amaz- 
ing spectacle  at  this  day  of  advanced  civilization  to  be 
able  to  catch  such  men  as  make  up  said  Board  of  Gov- 
ernors of  The  Society  of  the  New  York  Hospital,  to 
catch  such  men  as  Sheppard  Gandy^  President;  Theo- 
DORus  B.  WooLSEY,  Vice-President ;  J.  Edward  Sim- 
mons^ Treasurer ;  Joseph  H.  Choate,  William  Warner 
HoppiN,  Elbridge  T.  Gerry,  Philip  Schuyler,  James 
O.  Sheldon,  Hermann  H.  Cammann,  James  William 
Beekman,  Cornelius  N.  Bliss,  George  S.  Bowdoin, 
Waldron  Post  Brown,  Edward  King,  William  Alex- 
ander DuER,  Henry  W.  de  Forest,  P^dmund  D.  Ran- 
dolph, Fordham  Morris,  George  G.  Haven,  Frederick 
D.  Tappen,  George  G.  DeWitt,  Augustus  D.  Juilliard, 
Francis  Lynde  Stetson,  Thomas  H.  Barber,  Richard 
Trimble,  and  David  H.  King  attempting  to  fool  the 
public  and  in  order  to  fool  the  public  having — for  the 


310 


nonce — to  assume  the  role  of  quasi-h\w  breakers.  It  is 
an  aniazin<>-  spectacle,  a  spectacle  replete  wdth  the  ludi- 
crous to  catch  such  lawyers  as  Joseph  H.  Choate,  Henry 
W.  de  Forest,  George  G.  DeWitt,  and  Francis  Lynde 
Stetson;  and  such  lights  of  finance  as  J.  Edward  Sim- 
mons, Hermann  H.  Cammann,  Cornelius  N.  Bliss, 
George  S.  Bowdoin,  Waldron  Post  Brown,  George  G. 
Haven,  and  Augustus  D.  Juilliard;  and  such  repre- 
sentatives of  all  that  is  blue-blooded  and  fashionable 
as  William  Warner  Hoppin,  Philip  Schuyler.  James 
O.  Sheldon,  James  William  Beekman,  Edward  King, 
William  Alexander  Duer,  and  Thomas  H.  Barber;  and 
last  but  verv  far  from  least  the  name  of  that  formid- 
able  philanthropist  and  director  of  youth,  Elbridge  T. 
Gerry  himself;  it  is  surely  a  laughable  matter  to  catch 
archons  of  civilization  tripping.  But  amusing  as  said 
spectacle  is  said  spectacle  has  a  somewhat  serious  side. 
Said  spectacle  has  a  decidedly  serious  side,  to  wit. 
The  astounding  revelations  of  the  Ship-Building-Trust's 
wreckage — and  the  still  more  astounding  revelation 
as  to  what  pillars  of  finance  were  wet  by  the  spray 
thereof — has  })repared  the  pul)lic  mind  for  the  re- 
ception— touching  lights  of  Wall  Street — that  all  is 
not  gold  that  glitters.  But  said  Ship-Building-Trust's 
said  wreckage  was  a  mere  matter — large  as  said  matter 
^^'as — w;is  'i  mere  matter  of  dollars  and  cents,  whereas 
said  tripping  upon  said  part  of  said  Governors  of  said 
Society  of  the  New  York  Hospital  is  much  more  than  a 
mere  matter  of  dollars  and  cents,  although  plaintiff  was 
practically  robbed  by  said  Society  of  the  New  York 
Hospital  of,  in  round  numbers,  twenty  thousand  dollars. 
Said  tripping  means  little  short  of  this,  to-wit  That 
at  this  day  of  advanced  civilization  and  order,  and  all 
that,  there  exists  in  the  Metropolis  of  the  United  States, 
in  the  centre  of  wealth,  and  alleged  culture  and  alleged 


311 


kii()wle(li»e,  there  exists  in  New  York  Oity  today  an 
oi-i;aiiiz(Ml  band  of,  we  shall  not  say  robbers,  bnt  we 
shall  say  robber  barons,  who  like  their  prototypes  of  the 
Rhine,  have  a  stroni>hold  near  tlie  bank  of  the  Jlhine  of 
America — the  Hudson.  Who,  also  like  their  prototype 
of  the  .Mid<lle  Aiics,  rally  forth  therefrom  and  seize  rich 
travelers  who  happen  to  alitiht  within  strikint>-  distance 
of  said  band  of  or<j;anize{l  robber  barons.  Said  organized 
band  of  robber  barons  do  not  personally  issue  forth  at 
the  head  of  said  robber  barons'  retainers,  as  of  old,  but 
said  robber  barons  see  to  it  that  said  robber  barons'  re- 
tainers do  so  issue  fortli.  Plaintiff  was  ambushed  by  a 
part  of  said  rol)ber  barons'  retainers  under  the  leader- 
ship of  the  treacherous  spy  and  eavesdropper.  Dr.  Moses 
A.  Starr,  the  mas(iueradini>-  "oculist,"  who  intended  to 
dra«>  plaintiff  out  of  bed,  a  cold  winter's  night  and  there- 
upon drag  plaintiff  to  a  mad-house  cell.  As  was  said 
plaintiff'  declined  to  be  dragged,  but  said  declination  was 
no  part  of  the  proposed  performance  of  said  party  of 
said  rol)l)er  barons'  retainers  under  the  head-ship  of  said 
Moses  A.  Starr.  ()n<e  within  the  walls  of  said  robber 
barons'  said  stronghold  each  victim  is  systematically  rob- 
bed of  thousands  of  dollars  per  annum  as  was  plaintiff. 
Once  within  the  walls  of  said  robber  barons'  said  strong- 
hold said  victim  is  at  liberty  to  follow  the  advice  posted 
over  the  entrance  to  Dante's  Inferno — "All  hope  aban- 
don ye  who  enter  here."  Nothing  but  the  strong  arm 
of  the  law,  as  represented  l)y  habeas  corpus  proceedings, 
or  lack  of  funds,  ever  opens  the  doors  of  said  Inferno. 
Said  menace  to  life,  liberty,  and  property,  hanging  over 
the  heads  of  eacli  and  every  sojourner  in  the  City  of 
New  York,  is  a  rather  serious  thing.  Said  menace  is  a 
rather  serious  thing,  from  more  ])oints  of  view  than  one. 
One  of  said  points  of  view  regards  said  sojourner.  One 
of  said  ])oints  of  view  regards  the  future  prosperity  of 


01  O 


New  York  City.  Said  first  point  of  view  is  too  obvious 
to  need  discussion.  Said  second  point  of  view  is  as  fol- 
lows. Competition  has  set  in  between  Philadelphia  and 
Baltimore  as  regards  attracting  "buyers"  away  from  New 
York.  So  soon  as  "buyers"  learn  that  there  is  danger  of 
said  ''buyers"  never  leaving  New  Yoi'k  City  alive — pro- 
vided said  "buyers"  are  unfortunate  enough  as  to  have 
any  little  unpleasantness  with  said  'iiuyers'  "  wives  or 
said  "buvers'  "  families  which  mav  lead  said  wives  or  said 
families  to  desire  never  to  see  said  "buyers"  again,  or 
merely  to  obtain  possession  of  said  "buyers'  "  property, 
by  having  said  "Imyers"  secreted  for  life  in  the  said  So- 
ciety of  the  New  York  Hospital — said  "buyers"  will 
likely  choose  a  healthier  place  to  buy  in.  We  have  gone 
into  said  topic  rather  at  length  in  order  that  people  may 
know  of  the  traffic  in  men  and  women,  in  flesh  and  blood, 
which  is  being  carried  on  today  in  the  heart  of  the  al- 
lejicd  centre  of  civilization  on  this  continent.  In  close 
connection  therewith,  however,  arises  another  point.  Said 
point,  to-wit.  Anybody  reading  attentively  the  evidence 
in  plaintiff's  said  trial  in  1899  will  be  struck  by  the 
thinly  veiled  liostility  and  bitterness,  not  to  say  brutality, 
and  cru(dtv — coming  espeiallv  ns  said  testimcMiy  does 
fr(mi  the  mouths  of  followei-s  of  the  Healing  Art — the 
thinly  veiled  cruelty  and  brutality  of  said  testimony  upon 
the  part  of  the  said  Messrs.  Flint  and  Macdonald.  The 
cause  of  said  thinly  veiled  brutality  and  hostility  is  this. 
As  will  be  seen  from  the  following  exceri)ts  from  said 
Macdonald's  sworn  statement,  concurred  in  by  the 
statement,  not  sworn  to,  owing  to  illness,  but  ap- 
proved of  by  said  Flint,  as  will  be  seen  from  said  fol- 
lowing excerpts  plaintiff  spoke  as  frankly  concern- 
ing the  turpitude  aforesaid  of  Sheppard  Gandy. 
Theodorus  B.  Woolsey,  J.  Edward  Simmons,  Joseph 
H.    Choate,   William   AVarner   Hoppin,   Elp.ridge   T. 


313 


Gerry,  Philip  Schuyler,  James  O.  Sheldon,  Hermann 
H.  Cam:mann,  James  BEEKiviAN,  Cornelius  N.  Bliss, 
George  S.  Bowdoin,  Waldron  Post  Brown,  Edward 
King,  ^^'ILLIAM  Alexander  Duer,  Henry  W.  de  Forest, 
Edmund  1).  Randolph,  Fordham  Morris,  George  G. 
Haven,  Frederick  D.  Tappen,  George  G.  DeWitt,  Au- 
gustus D.  JuiLLiARD,  Francis  Lynde  Stetson,  Thomas 
H.  Barber,  Richard  Trimble,  David  H.  King,  Jr.,  How- 
ard Townsend  and  George  F.  Baker  before  said  phy- 
sicians as  plaintiff  has  written  frankly  above.  Of  course, 
beinji'  alleiied  experts  in  insanity,  said  Flint  and  said 
Macdonald  found  it  beyond  their  powers  to  tell  the  truth, 
and  consequently  lied  in  a  most  barefaced  and  villainous 
manner  in  said  gentlemen's  said  statements  as  well  as 
in  said  jientlemen's  sworn  testimony  against  plaintiff's 
sanity  and  competency.  Said  excerpts  to-wit.  Page  2, 
Proceedings  1899  (Transcript  of  Record,  p.  120,  ful. 
231)  :  ''the  KHh  day  of  March,  1898,  wlieii  deponent, 
together  with  said  Doctor  Austin  Flint,  spent  two  hours 
in  conversation  with  said  Ghanler,  in  his  own  apart- 
ments at  Bloomingdale;  that  at  tlie  time  of  said  visit 
deponent  carefully  examined  the  said  John  Armstrong 
Ghanler,  wlio  immediately  began  to  explain  his  case  to 
deponent  and  the  said  Doctor  Flint  and  said,  among 
other  tilings,  that  he  was  the  victim  of  a  gigantic  con- 
spiracy on  the  part  of  his  relatives  *  *  *  the  otlier 
conspirators  l)eing  prominent  citizens  of  the  City  of 
New  York  were  named  bv  the  said  John  Armstrong 
Ghanler,  including  prominent  lawyers  and  judges  of  tbe 
said  city."  *  *  *  (P.  122.  fol.  238),  "Deponent,  to- 
gether with  the  said  Austin  Flint,  again  visited  the  said 
John  Armstrong  Ghanler  in  his  apartments  at  Blooming- 
dale  on  April  9th,  1898;  that  at  the  said  time,  the  said 
Ghanler  was  not  completely  dressed  and  acted  in  a 
strange  manner;  that,  among  other  things,  he  took  from 


314 


under  the  mattress  of  his  bed  a  lar,L;e  volume  of  manu- 
script, to  wliicli  he  called  our  attention,  statlnj^;  tiiat  it 
was  his  case,  and  that  no  one  but  himself  knew  its  con- 
tents, and  tliat  he  intended  to  read  it  on  the  witness 
stand  when  his  case  came  up  in  court."  *  *  *  ( Pai>,e 
7,  ibid.)  "that  he  recited  to  deponent  and  the  said  Doctor 
Austin  Flint,  seven  or  eight  sonnets  of  his  own  composi- 
tion (p.  124,  f<d.  242).  *  *  *  He  went  into  a  trance 
at  the  re(]uest  of  deponent  and  gave  the  most  vivid  il- 
lustrations of  the  deatli  of  Napoleon  *  *  *  Deponent 
further  says  that  the  foregoing  are  a  few  instances  of  a 
most  violent  and  tragic  talk  with  the  said  John  Arm- 
strong ( 'hauler,  which  lasted  as  aforesaid  over  an  hour: 
and  that  the  said  talk  was  accompanied  with  denuncia- 
tions of  vile  conspiracies  against  him."  *  *  *  (Page 
119,  fol.  233.)  ('arlos  F.  .Macdonald  being  called  as  a 
witness,  for  the  petitioners,  was  duly  sworn,  and  testi- 
fied as  follows:  By  :Mr.  Candler  *  *  *  Q.  "Offi- 
cially connected  with  an^'  hospital?"  A.  ''I  have  been 
officially  and  professionally  connected  with  hospitals  and 
asylums— hospitals  for  the  insane  and  asylams  snice 
1870  *  *  *  and  for  seven  or  eight  years  President 
of  the  State  Commission  in  Lunacy,  in  this  State"  *  *  * 
Q.  '^During  that  time  you  examined  many  cases  of  men- 
tal disease?''  A.  ''Yes,  sir,  many  thousands  *  *  * 
several  thousand  cases  a  year."  Q.  "Have  you  served 
on  a  special  commission  appointed  by  the  governor  of 
the  State?"  A.  "Yes,  sir,  frequently."  Q.  "For  wliat 
purpose?"  A.  "For  the  purpose  of  determining  the  men- 
tal condition  of  persons  under  sentence  of  death.  I 
think  I  served  on  every  -commission  under  Crovei-nor 
Cleveland,  Governors  Morton,  Hill  and  Flower,  with 
one  or  tAvo  exceptions."  *  *  *  q.  "Are  you  ac- 
quainted with  John  Armstrong  Chanler,  tlie  respondent 
here?"    A.  "Yes,  sir."    Q.  "Have  you  visited  him  in  the 


315 


Blooiiiiiiiidale  Asvlniu  for  tlic   Insane?"     A.   ''Yes,  sir. 

*  *  *  I  tirst  visited  John  Annstron*;'  riianler  at  the 
Rlooniiniichile  Asvlnni  for  the  Insane  on  Mareh  l(>th, 
1898,  in  company  with  Doctor  Austin  Flint,  of  this  city. 
We  went  np  there  to  the  institution  and  jointly  made 
a  personal  examination  of  Mr.  John  Arnistroni»-  ('hauler. 

*  *     *     We  informed  ]Mr.  Chanler  who  we  were  and 
the  purpose  of  our  visit;  that  we  were  there  to  examine 
him  as  to  his  mental  condition.     He  received  us  cor- 
dially and  immediateh^  began,  as  he  said,  to  explain  his 
case.     He  said  he  was  a  victim  of  a  gioantic  conspiracy 
on  the  part  of  his  relatives — the  other  conspirators  be- 
ing Joseph  H.  Choate,  Elbridge  T.  Gerry,  Cornelius  N. 
Bliss,  Judge  Beekman    and    several    others    whom    he 
named,  that  tliev  had  subsidized  the  State  and  National 
Government  which  were  arraved  against  him:  that  his 
case  was   thoroughly  prepared."     Q.    "He  named   Mr. 
Choate  and  Mr.  Gerry  and  others?"     A;  "He  named,  I 
think,  the  most  of  them  were  members  of  the  Board  of 
Governors  of  the  New  York  City  Hospital,  as  that  is  a 
branch — of  which  Bloomingdale  is  a  braucli.'"    Q.  "That 
is  the  reason  they  were  selected?"     A.  "Yes,  sir.     That 
they  had  subsidized  the  State  and  National  Government 
which    were  arrayed   against   him ;   that    his   case   was 
thoroughly   prepared   and   Avould   be   taken   up   by   the 
court."    Dr.  Samuel  B.  Lyon,  Superintendent  of  the  So- 
ciety of  the  New  Y^ork  Hospital,  on   the  stand    (Tran- 
script of  Record,  pp.  117-118).     (Page  14  Proceedings, 
1899)  By  Commissioner  Fitch.     (].  "I  notice  in  the  cer- 
tificate that  he  (plaintiff)  only  took  certain  articles  of 
food  about  two  years  ago  restricting  himself  to  diet; 
does  he  still  do  that?"    A.  "He  still  continues  vegetable 
diet.     I  am  not  aware  that  he  has  eaten  any  meat  since 
he  was  with  us."     *     *     *      (Page  118,  //W?)-    A.  "I  do 
not  know  whether  I  mentioned  it,  but  he  thinks  there 
is  a  conspiracy  of  the  Wall  Street  clique.    He  mentioned 


31G 


Clioate  *  *  *  he  thinks  we  arc  understrappers,  and 
he  is  very  amiable  now."  (Mtini>'  finally  from  the  deposi- 
tion of  said  Dr.  Lyon  on  Pas.'e  82,  fol.  158.  "That  he 
(said  Dr.  Lyon  )  l)elieves  the  said  John  Armstrong  Ghan- 
ler  to  be  insane  and  unable  to  manage  himself  or  his 
affairs,  and  that  the  grounds  of  his  belief  are  as  follows: 
That  since  the  patient's  admission  to  Bloomingdale,  he 
has  had  delusions  that  conspiracies  existed  against  his 
life  and  hapjuness;  he  has  passed  his  nights  in  watch- 
ing, has  often  declared  his  belief  in  his  own  prominent 
talents  as  a  lawyer,  pugilist,  poet,  etc.,  that  while  really 
a  very  bright  man  naturally,  he  has  now  the  delusion 
that  his  mentarpowers  are  almost  supernatural,  an<l  that 
his  personality  has  undergone  a  change  and  that  he  now 
has  a  very  high  mission  to  fulfill  toward  the  world.  His 
disease  appears  to  pursue  the  typical  course  of  what  is 
known  as  systematized  delusional  insanity,  beginning 
with  suspicions  of  persecution  by  enemies  for  a  purpose 
and  later  developing  expansive  ideas  of  his  own  per- 
sonality.'' 

Examining  now  said  excerpts  in  detail.  Taking  first 
said  excerpt  (Transcript  of  Record,  p.  87,  fol.  169,  page 
2,  Proceedings  18991.  Said  Macdonald  says:  "said  John 
Armstrong  Chanler  *  *  *  said  among  other  things 
that  he  was  the  victim  of  a  gigantic  conspiracy  on  the 
part  of  his  relatives  *  *  *  the  other  conspirators 
being  prominent  citizens  of  the  city  of  New  York  who 
were  named  by  the  said  John  Armstrong  Chanler,  in- 
cluding prominent  lawyers  and  judges  of  the  said  city." 
The  ''prominent  citizens''  were  the  said  Governors  of 
The  Society  of  the  New  York  Hospital  in  that  said  gen- 
tlemen were  behind  said  Hospital  which  illegally — since 
plaintiff  on  the  evidence  arrived  at  said  Hospital  sane 
and  remaind  sane  in  spite  of  the  aforesaid  efforts  of 
the  ]N[edical  Staff  thereof — exclusive  of  said  Dr.  Samuel 


317 

R.  T.yoii,  tlic  Medical  Superiiitciideiit  thereof,  who  never 
molested  plaintiff  in  any  way  and  did  his  best  to  render 
plaintift''s  enforced  false  imprisonment  as  little  irksome 
as  lay  in  said  Dr.  Lyon,  the  Medical  Superintendent 
thereof,  who  never  molested  Staff  thereof  to  argue  plain- 
tiff into  admittino  that  plaintiff  was  insane  and  there- 
by becoming-  insane — the  "prominent  citizens"  were  the 
said  Governors  of  The  Society  of  the  New  York  Hos- 
pital, in  that  said  gentlemen  Avere  behind  said  Hospi- 
tal which  illegally,  for  the  reason  aforesaid,  to  say  noth- 
ing of  the  utter  illegality  and  nullity  of  the  said  Com- 
mitment Proceedings  before  Justice  H.  A.  Gildersleeve 
aforesaid,  which  illegally  held  plaintiff  a  prisoner  upon 
a  false  charge  of  lunacy,  at  a  ransom  of  one  hundred 
dollars  per  week,  not  counting  extras.  That  said  gen- 
tlemen being  behind  such  a  nefarious  institution  as  The 
Society  of  the  New  York  Hospital  on  the  evidence,  has 
proved  said  Society  to  be,  that  said  gentlemen  being 
behind  such  a,  so  to  speak,  "dead-fall"  such  an  oubliette, 
as  said  Society  has  upon  the  evidence  proved  said  So- 
ciety to  be,  are  conspirators  against  the  public.  Taking, 
second,  said  excerpt  (Transcript  of  Record,  p.  88,  fol. 
170,  page  4)  (Proceedings  1899).  Said  Macdonald  says, 
"at  the  said  time  the  said  Chanler  was  not  completely 
dressed."  When  the  facts  are  known  the  above  will 
appear  to  be  what  al)ove  is,  to  wit,  a  venomous,  menda- 
cious inference  that  there  was  something  insane  and 
unbalanced  in  plaintiff's  being  "not  completely  dressed." 
The  simple  fact  was  that  plaintiff  had  been  working 
over  plaintiff's  brief  rather  late  the  night  before  and  in 
order  to  make  up  for  lost  sleep  had  slept  later  than 
usual  and  was  still  in  bed  when  said  Macdonald  called. 
Said  Macdonald  goes  on  "and  acted  in  a  strange  man- 
ner; that,  among  other  things,  he  (plaintiff)  took  from 
under  the  mattress  of  his  bed  a  large  volume  of  manu- 


318 


script,  to  which  he  called  oiii-  attention,  stating  that  it 
was  his  case,  and  that  no  one  but  himself  knew  its  con- 
tents." What  is  there  strange  in  that?  Plaintiff  was 
alone  among  people  spying  upon  him  day  and  night 
as  the  record  ])roves.  Plaintiff  had  no  one  to  rely  on 
but  himself.  IMaintitt'  therefore  kept  plaintiff's  im- 
portant papers  where  no  one  could  touch  them,  while 
plaintiff'  slept,  without  rousing  plaintiff.  When  plain- 
tiff later  obtained  a  despatch-box  plaintiff"  ceased  put- 
ting said  manuscript  under  said  mattress  at  night  and 
kept  plaintiff's  papers  therein  under  lock  and  key.  Tak- 
ing, third,  said  excerpt  (p.  Ill),  fob  234)  (by  Mr.  Cand- 
ler) Q.  "Have  you  served  on  special  commissions  appoint- 
ed by  the  Governor-  of  the  State?"  A.  "Yes,  sir,  frequent- 
ly." Q.  "For  what  purpose?"  A.  "For  the  purpose  of 
determining  the  mental  condition  of  persons  under  sen- 
tence of  death."  It  is  to  be  hoped  that  upon  said  sinister 
occasions  said  Macdonald  showed  more  learning  and 
more  honesty  than  said  ^Macdonald  has  displayed  to- 
ward plaintiff".  Said  jVIacdonald  goes  on.  "We  (said 
Macdonald  and  Flint)  informed  Mr.  Chanler  who  we 
were  and  the  purpose  of  our  visit;  that  we  were  there 
to  examine  him  as  to  his  mental  condition."  As  plain- 
tiff shows  in  plaintiff's  said  affidavit  the  above  is  only 
a  half-truth.  Said  Macdonald  and  Flint  did  say  they 
"were  there  to  examine  him  (plaintiff)  as  to  his  mental 
condition."  The  onlv  difficultv  about  said  statement 
being  that  it  (piite  sinks  the  fact  that  said  Macdonald 
and  said  Flint  were  guilt.y  of  gross  falsehood  when  they 
went  into  the  (juestion  as  to  whom  they  represented. 
Said  gentlemen  saying  in  reply  to  plaintiff  that  said 
gentlemen  represented  no  one,  while  the  fact  is,  as  the 
said  proceedings  prove,  said  gentlemen  were  in  the  pay 
of  the  other  si<le.  Said  Macdonald  goes  on  "He  received 
us  cordially  and  immediately  began,  as  he  said,  to  ex- 


319 


plain  his  case/"    Why  put  in  the*  slur,  ''as  he  said,""  unless 
said  ^lacdonald  desired— as  said  Macdonahrs  said  testi- 
mony  abundantly   ]u-()ves — uidess   said    Macdonald   de- 
sired to  put  in  a  slur  upon  plaintiff  at  all  and  sundry 
opportunities  for  slurs  in  season  and  out  of  season.   Haid 
Maodonald  i>,()es  on  :     "He  said  he  was  a  victim  of  a 
gigantic  conspiracy  on  the  part  of  his  relatives     *     *     * 
the  other  conspirators  being  Joseph  H.  Choate,  Elbridge 
T.  Geri-y,  ( 'ornelius  N.  Bliss.""    The-said  Governors  of  the 
said   Society  of  the  New  York   Hospital   were  in   fact 
conspirators  as  aforesaid.      Said   Macdonald   goes  on: 
"Judge  Beekman  and  several  others  whom  he  named; 
that  they  had  subsidized  the  State  and  National  Gov- 
ernnu^nt  which  were  arrayed  against  him;  and  his  case 
was  thoroughly  prepared."     Plaintiff  did  not  mention 
Judge  Beekman.    Neither  did  plaintiff  nmke  the  absurd 
statement  attributed   to  plaintiff  concerning  the  State 
and  National  Government.     What  plaintiff  did  say  was 
that  apparently  the  proprietors  of  Private  Madhouses 
in  New  York  State  had  apparently  pretty  effectually 
subsidized  the  New  York  State  legislature  of  1896;  for 
how  otherwise  could  the  passage  of  so  iniquitous  a  lot 
of  laws  and  so  wholly  illegal  a  lot  of  laws  as  some  of 
the  Lunacy  Laws  of  said  legislature,  passed  in  1896,  be 
accounted   for?     Q.  "He   named   Mr.   Choate   and   Mr. 
Gerry  and  others?"     A.  "He  nanu^d,  I  think  the  most 
of  them  were  members  of  the  Board  of  Governors  of  the 
New  York  City  Hospital,  as  that  is  a  branch — of  which 
Bloomingdale  is  a  branch."    Q.  "That  is  the  reason  they 
Avere  selected?"     A.  "Yes,   sir.      That   they  had  subsi- 
dized the  State  and  National  Government  which  were 
arrayed    against   him ;    that    his    case    was    thoroughly 
prepared    and     would     be    taken    up    by    the    court." 
vSaid     :Macdonald     again     displavs     said     :Macdonald's 
mendacious     venom     here.       For     fear     that     a     true 


320 


iiiipressiou  ^^•<)^ld  be  created  by  allowing  tbe  fact 
that  tlie  men  plaintiff  criticized  were  criticized 
becanse  said  men  were  (xovernors  of  said  Society 
of  said  New  York  Hospital  so  soon  as  said  fact  was  re- 
luctantly drawn  out  of  said  Macdonald,  said  Macdon- 
ald  hastens  to  wipe  out  the  i>ood  effect  of  said  fact  by 
reiterating  said  absurd  falsehood  in  re  the  array  of 
the  State  and  National  Governments.  Taking,  fourth 
and  last,  said  excerpt  (p.  117,  fols.  230-231)  (page  14, 
Proceedings  1899)  (Dr.  Samuel  B.  Lyon  on  the  stand). 
(By  Commissioner  Fitch)  :  Q.  ''I  notice  in  the  certifi- 
cate that  he  (plaintiff)  only  took  certain  articles  of 
food  aboiit  two  years  ago,  restricting  himself  to  diet ; 
does  he  still  do  that?"  A.  "He  still  continues  vegetable 
diet.  I  am  not  aware  that  he  has  eaten  any  meat  since 
he  was  with  us."  Is  it  not  a  laughable  thing  that  the 
charge  of  insanity  in  this  day  of  advanced  civilization 
can  be  preferred  against  a  party  because  he  happens 
to  be  a  vegetarian,  for  the  practical  reason  that  said 
party  finds — as  all  doctors  who  have  studied  the  sub- 
ject have  found^that  all  meat  red  and  white  is  more 
or  less  gout-producing  and  rheumatism  producing,  es- 
pecially in  a  party  who  happens  to  have  an  inherited 
tendency  to  gout ;  which  said  tendency  shows  itself  if 
said  party  indulges  in  wine,  beer  and  spirits,  and  eats 
meat  with  or  without  wine,  beer  or  spirits,  but  not  other- 
wise? (Page  118,  fol.  231,  ibid.)  A.  ''I  do  not  know 
Avhether  I  mentioned  it,  but  he  thinks  there  is  a  con- 
spiracy of  the  Wall  Street  Clique.  He  mentioned 
Choate  *  *  *  he  thinks  we  are  understrappers,  and 
he  is  very  amiable  now."  The  above  being  interpreted 
means.  AVhen  ])laintiff  was  first  incarcerated  in  The 
Society  of  The  New  York  Hospital  plaintiff,  having  a 
fairly  good  idea  of  human  nature,  and  plaintiff's  fellow 
man,  was,  however  foolish  enough  and  fresh  enough  to 


321 


think  thai  no  iiieii  iwe  wholly  had  ;  that  no  men  can  play 
the  role  of  incarnate  fiends;  stran<>,ers  to  trnth,  stranuers 
to  honesty,  stranj^ers  to  hnman  syni])athy,  and  stranj;ers, 
finally,  to  the  veriest  shred  or  fragment  of  anythinj^ 
most  remotely  resemblin"'  coninum  liumanitv.  Plain- 
titf  did  not  know  the  (xovernors  of  The  Society  of  the 
New  York  Hospital  and  their  allied  doctors  and  lawyers. 
Plaintiff  foolishly  and  freshly  snrniised  that  once  the 
Medical  Staff  of  The  Society  of  the  New  York  Hos- 
pital had  had  a  couple  of  weeks  to  observe  plaintiff, 
and  to  learn  upon  (}nestionini>  ])laintiff,  that  plaintiff's 
views  anent  spirits  and  spiritualism  and  all  and  any 
alleged  supernatural  agency  at  work  in  this  practical 
work-a-day  world  were  precisely  what  said  views  were 
shown  to  be  in  plaintiff's  said  examination  at  the  hands  of 
Professor  Horatio  Curtis  Wood,  M.  I).,  aforesaid,  supra; 
plaintiff  foolishly  and  freshly  surmised  that  once  said 
Medical  Staff'  had  two  weeks  to  examine  plaintiff'  in  that 
then  said  Medical  Staff'  not  l)eing  incarnate  fiends,  not 
being  men  who  for  ])ay  would  consign  a  nmn  to  a  living 
tomb,  to  a  fate,  in  the  eyes  of  any  man  of  intelligence 
and  activity,  to  a  fate  worse  than  death,  to  a  madhouse 
cell  foi-  life;  plaintiff"  foolishly  and  freshly  surmised 
that  in  Siiid  event  said  Medical  Staff,  not  being  fiends 
would  promptly  report  to  said  Dr.  Lyon,  the  Medical 
Superintendent  of  The  Society  of  the  New  York  Hos- 
pital that  plaintiff'  was  sane  and  therefore,  of  course, 
must  l>e  released.  The  said  two  weeks  rolled  slowly 
by.  During  said  two  weeks  plaintiff  was  as  polite  and 
obliging  to  said  .Medical  Staff'  as  was  possible  to  be. 
Plaintiff  aided  said  Medical  Staff"s  eff'orts  at  examin- 
ing plaintiff'  in  every  way  in  plaintiff's  power.  Plaintiff 
allo\v(Ml  said  Medical  Staff'  to  obtrude  itself  upon  plain- 
tiff' at  all  hours  of  the  dav  or  night.  Plaintiff  always 
received   said   ^Medical    Staff'  upon   such   occasions  cor- 

(21) 


clially.  Plaiiititt'  freely  discussed  all  and  any  of  the 
l)liases  of  plaintiff's  ease  that  said  Medical  Staff  desired 
to  heal-  discussed.  In  short  plaintiff  was  complaisance 
itself.  At  the  end  of  said  tAvo  weeks',  however,  plaintiff 
saw  tliat  plaintiff  had  overestimated  said  Medical  Staff, 
that  said  Medical  Staff"  were  in  fact  no  better  than  so 
nuuiy  incarnate  fiends — as  incarnate  fiends  have  been 
above  outlined  to  be.  Thereupon  plaintilf's  attitude  to- 
ward said  Medical  Staff  instantly  chanoed  and  plain- 
tiff' accused  said  Medical  Staff'  to  said  Medical  Staff's 
face  of  bein<»-  quacks  of  the  most  degenerate  and  aban- 
doned type.  This  sort  of  thing  kept  up  for  months, 
Plaintiff'  frankly  laughing  at  the  open  and  above-board 
rascality  of  said  Medical  Staff  in  said  Medical  Staff's 
face.  Said  laugh  of  plaintiff's  did  not  strike  a  sympa- 
thetic chord  in  said  Medical  Staff',  but  said  Medical  Staff 
had  to  stand  said  laugh  whenever  said  Medical  Staff  ob- 
truded itself  upon  plaintiff'.  AVith  the  lapse  of  years 
plaintitt"s  i-ighteous  indignation,  not  only  as  a  man,  but 
as  an  officer  of  the  Court,  at  such  criminal  doings  with- 
in the  center  of  the  Metro])olis  of  th(-  United  States, 
plaintiff's  said  ijulignation  not  cooled  but  centered 
against  the  leading  criminals  in  said  criminal  doings, 
to  wit,  the  said  Governors  of  tlie  Society  of  the  New 
York  Hospital.  Tlaintiff'  at  cmce  changed  plaintiff"s 
tone  toward  said  ^Medical  Staff';  Plaintiff  sent  for  said 
Medical  Staff  and  said  in  effect:  "I  have  experienced  a 
change  (tf  heai't--but  not  of  head.  I  have  concluded  to 
practice*  pretty  high  Christianity  and  forgive  you,  gen- 
tlemen, for  ycmr  share  in  this  game  of  rascality  and 
not  pursue  you,  gentlemen,  in  the  Courts  for  false  im- 
prisonment, as  I  had  decided.  I  have  determined  to  let 
you  gentlemen  alone  and  look  to  The  Society  of  the 
New  York  Hospital  alone.  ^ly  reason  for  so  doing  is, 
you  are  mere  understrappers  in  this  affair.     You  are 


323 


hired  by  the  Governors  of  the  Society  of  the  New  York 
Hospital  to  hold  all  men  and  all  women  run  in  here  un- 
der the  present  illei^al  laws  on  Lunacy  of  the  State  of 
New  York,  to  hold  all  men  and  all  women  run  in 
here,  whether  insane  or  sane,  for  so  long  as  the  parties 
who  ran  said  men  and  women  in  here  put  up  a  suf- 
ficiently fat  fee  for  holding  sane  men  and  sane  women 
illegal  prisoners.  This  institution  is  not/ as  is  popularly 
supposed,  a  public  institution  nor  is  this  institution 
an  eleemosvnarv  institution.  This  institution  is  a 
purely  money-making  concern,  travelling  under  a  false 
name,  contrary  to  law  and  doing  a  nefarious  trade  in 
men  and  women.  If  you  did  not  do  the  said  bidding  of 
the  said  Board  of  Governors  of  The  Society  of  the  New 
York  Hospital,  you  would  lose  your  job.  The  proof 
of  the  pudding  is  in  the  eating  thereof.  If  what  I  allege 
against  the  Board  of  Governors  aforesaid,  were  not 
strictly  unexaggerated,  were  not  strictly  true,  why  is  it 
that  there  is  no  case  on  record  of  a  party  committed 
here  against  said  party's  will,  ever  being  set  free  until 
said  party  had  called  in  the  strong  arm  of  the  law  and 
worked  a  habeas  corpus  on  you?  There  is  hardly  a  year 
goes  by  that  one  nmn  or  woman — sane  man  or  woman, 
and  sometimes  more  than  one  in  a  given  year — there  is 
hardly  a  year  by  that  one  man  or  one  woman,  per- 
fectly sane,  does  not  tight  his  or  her  way  out  of 
'Blomingdale,'  falsely  so-called.  Having  come  to  the 
aforesaid  conclusion,  I  am  prepared  to  make  allowance 
for  human  nature  and  to  admit  that,  from  a  business 
point  of  view,  but  only  from  said  point  of  view,  you 
are  right  to  hold  your  jobs."  From  that  day  plaintiff 
was  as  said  Dr.  Lyon  says,  supra,  "I  do  not  know  wheth- 
er I  mentioned  it,  but  he  thinks  there  is  a  conspiracy  of 
the  Wall  Street  Cli(iue  (p.  118,  fol.  231) .  He  mentioned 
Choate     *     *     *     he  thinks  we  are  understrappers  and 


324 


he  is  a  \eiy  aiiiiahle  now."  The  foremost  round  for  said 
Dr.  Lvon's  belief  that  phiintilf  was  "insane  and  unable 
to  manage  himself  or  his  aft'airs"  was  "That  since  the 
patient's  admission  to  Bloomiugdale  he  has  had  delu- 
sions that  conspiracies  existed  against  his  life  and  hap- 
piness." Said  Dr.  Lyon's  second  ground  for  said  Doc- 
tor's belief  that  plaintiff  was  "insane,"  etc.,  was  "He 
has  passed  his  night  in  watching.''  Dr.  Lyon  aforesaid 
here  becomes  classical  in  said  Doctor's  diction,  and  em- 
ploys an  old  English  use  of  the  word  "sit"  or  "sit  up" 
at  night  for  "watch."  Plaintiff"  was  in  the  haltit  of 
sitting  up  very  late  writing  or  reading  at  night,  for  the 
reason  that  at  that  time  the  lunatics  are  usually  asleep, 
and  therefore  less  prone  to  yelling  than  when  said  luna- 
tics are  awake  in  the  day  time.  Said  Dr.  Lyon's  third 
ground  for  said  Doctor's  belief  that  plaintiff'  was  "in- 
sane," etc.,  was  that  while  said  Medical  Staff  were  con- 
tinually calling  plaintiff'  to  plaintiff"s  face — an  incompe- 
tent ])erson — before  plaintiff  experienced  said  change  of 
heart  and  forgave  said  Medical  Staff,  that  while 
said  Medical  Staff  were  continually  depreciating 
plaintiff's  personal  stock  —  so  to  speak  —  plaintiff 
having  no  one  to  say  so  much  as  a  good  word 
for  plaintiff,  plaintiff  mach*  bold  to  put  in  as  a  plea 
in  rebuttal  of  the  aforesaid  charges  of  insanity  and 
folly  the  claim  to  being  an  all-round  man,  that  is  to 
say  a  rounded  nmn,  one  developed  physically,  in- 
tellectually, and  artistically,  and  plaintiff  brought 
forward  as  proof  of  said  contentions  the  fact  of  record, 
that  plaintiff  could  spar,  that  plaintiff  was  a  lawyer, 
and  that  plaintiff  could  write  sonnets  which  the  wit- 
nesses of  the  other  side  admitted  were  "certainly  of  a 
most  extraordinary  nature  and  very  brilliant  in  a  way." 
To  put  it  mildly,  said  Dr.  Lyon  is  in  error  when  said 
Doctor  avers  "he  has  now  the  delusion  that  his  mental 


325 


poAvers  are  almost  supernal ural."  Said  Dr.  Lyon  is 
good  enough  to  gild  the  above  monstrous  pill  with  the 
remai'k  that  plaintitf  is  "really  a  very  bright  man  nat- 
urally." Said  Dr.  Lyon's  fourth  ground  for  said  Doc- 
tor's belief  that  })laintiff  was  "insane,"  ete.  was  "and  that 
his  personality  has  undergone  a  change  and  that  he  now 
has  a  verv  high  mission  to  fulfill  toward  the  world." 
Plaintiff's  personality  had  undergone  a  two-fold  change 
during  plaintiff's  long  incarceration  at  White  Plains. 
Said  change  was  partly  physical  and  partly  mental. 
Said  physical  change  was  that  plaintiff,  from  being  a 
g*m.S'/-vegetarian,  when  plaintiff"  entered  The  Society  of 
the  New  York  Hospital,  ended  by  becoming,  before  the 
nearly  four  years  of  imprisonment  were  terminated,  by 
escape,  ended  by  becoming  a  strict  vegetarian.  Said 
mental  change,  to  wit.  While  not  caring  to  undergo 
the  charge  of  cynicism,  plaintiff,  to  be  honest,  must 
admit  that  plaintiff's  experiences  with  plaintiff's  fellow 
man  at  The  Society  of  the  Ncav  York  Hospital — and  all 
that  that  phrase  entails— that  plaintiff  is  certainly  not 
open  to  the  charge  of  being — so  far  as  human  nature  is 
concerned,  and  the  depths  of  murderous  rascality  to 
which,  upon  temptation,  human  nature  readily  sinks — 
plaintiff'  t(uiching  hunmn  nature  is  certainly  not  open 
to  the  charge  of  optimism.  Plaintiff  as  a  lawyer  and 
mindful  of  plaintiff's  oath  does  not  hestitate  to  assert 
that  plaintiff  would  be  recreant  to  plaintiff's  profes- 
sion as  well  as  to  plaintiff's  said  oath  did  plaintiff,  as 
an  officer  of  the  Court,  allow  such  a  crime  and  such  a 
criminal  combination  as  is  represented  by  the  past  action 
of  the  other  side  and  all  that  that  entails,  to  go  unde- 
nounced. Said  Dr.  Lyon's  peroration — so  to  speak — is 
a  pretty  example  indeed  of  the  cry  of  wolf.  Said  Dr. 
Lyon  says,  "His  disease  appears  to  pursue  the  typical 
course  of  what  is  known  as  systematized  delusional  in- 


326 


sanity,  beginning  with  suspicions  of  persecutions  by 
enemies  for  a  purpose  and  later  developing  expansive 
ideas  of  his  own  personality."  Plaintiff's  "disease"  was 
one  which  attacks  all  lawyers  worthy  of  the  profession, 
when  said  lawver's  rights  are  menaced.  Plaintiff's  "dis- 
ease"  was  one  which  attacks  all  honest  men,  whether 
lawyers  or  laymen,  who  find  themselves  in  a  den  of 
thieves.  Plaintiff's  "disease"  in  short  knew  but  one  cure 
and  said  cure  was  a  speedy  entry  into  Court.  The  cry 
of  "wolf"  is  shown  from  the  fact  that  everybody,  every 
sane  body  that  is,  Avho  finds  himself  or  herself  in  the 
clutches  of  The  Society  of  the  New  York  Hospital  desires 
redress.  Upon  fighting  their  way  out  by  habeas  corpus 
proceedings  said  parties  let  the  matter  rest  there.  Plain- 
tiff fails  to  find  how  plaintiff  has  "developed  expansive 
ideas  of  his  own  personality."  A  close  inspection  of  said 
proceedings  in  1897,  as  well  as  of  said  proceedings  in 
1899,  as  well  as  of  said  proceedings  in  1901,  will  develop 
the  fact  that  plaintiff  far  from  "developing  expansive 
ideas  of  his  own  personality"  has  spent  time  and  money 
in  undeveloping  the  bogus  personality  ^whicli  the  ex- 
pansive mendacity  of  the  doctors  in  the  pay  of  the  other 
side  has  foisted  upon  the  said  record,  so-called,  of  1897, 
and  the  said  record,  so  called,  of  1899,  where  said  bogus 
personality  lias  been  allowed  to  masquerade — OAving  to 
the  fact  that  plaintiff  has  not  yet  been  able  to  have  plain- 
tiff's day  in  Court — where  said  bogus  personality  has 
mas(]ueraded  in  veritable  harlequin  colours  in  lieu  of 
the  quiet  law-abiding,  studious  colours  which  distinguish 
l)laintiff's  true  personality  on  the  evidence  furnished  by 
the  record  of  said  proceedings  in  1901.  In  closing  said 
branch  of  this  (question  a  query  obtrudes  itself.  Said 
query  to  wit :  Why  should  Dr.  Carlos  F.  Macdonald 
and  Dr.  Austin  Flint,  Senior,  aforesaid  display  so  much 
thinly  veiled  venom  towards  plaintiff?     Plaintiff  had 


'\'>7 


never  by  dwd  or  word  injured  citlier  of  said  Medical 
men.  The  answer  to  said  (luerv  is  not  hard  to  find.  The 
answei-  to  said  (juery  is  as  follows.  As  a])])ears  from 
the  said  ]>ro<eedini;s  in  1899  plaintiff  has  denounced  all 
parties  to  said  (■onsi)ira(y  as  freely  as  plaintiff  has  de- 
nounced said  parties  in  plaintitt"'s  said  brief.  Plain- 
tiff" had  said  to  said  Doctors  that  sooner  or  later  plain- 
tiff', alonji'  with  plaintiff"s  said  brief,  would  get  to  Court. 
Plaintiff'  gave  as  a  reason  for  said  bold — under  the  cir- 
cumstances, plaintiff'  being  at  said  time  laid  by  the  heels 
in  a  madhouse  cell — assertion  that  plaintiff  had  a  pretty 
thoroughly  develoix'd  will-power,  and  that  said  will- 
power was  ample,  not  only  to  preserve  plaintiff  from  suc- 
cumbing to  the  force  of  environment  and  beccmiing  in- 
sane, but  also  ample  to  carry  plaintiff  over  all  the  ob- 
stacles which  might  offer  themselves  in  the  path  of  a 
c(miplete  and  public  vindication  of  plaintiff*'s  entire 
sanity  and  competency,  not  only  at  present  but  at  the 
time  of  plaintiff''s  said  illegal  arrest  and  illegal  incar- 
ceration in  The  Society  of  the  New  York  Hospital.  That 
once  said  vindication  took  place  said  vindication  would 
necessarily  have  carried  in  said  vindication's  train  an 
exposure  of  the  New  York  Lunacy  Laws,  and  an  ex- 
posure of  the  New  York  method  of  working  said  Lunacy 
Laws,  together  with  an  exposure  of  the  methods  and 
aims  of  New  York  alleged  experts  in  insanity, ,  New 
York  jMedical-Examiners-in-Lunacy.  Such  an  exposure 
Avould  not  be  pleasing  to  said  New  York  ^ledical-Ex- 
aminers-in-Lunacy.  Such  an  exposure  would  in  the 
nature  of  things,  and  ujxm  the  principle  that  self-pre- 
servation is  nature's  first  law,  lead  the  people  of  the 
State  of  New  York,  so  soon  as  the  people  of  the  State  of 
New  York  grasped  the  size  and  hideous  character  of 
the  dang<M'  that  nnght  menace  any  of  them — to  wit,  life 
imprisonment  in  a  mad-house  cell  without  notice,  with- 


328 


out  a  lieai'injj;,  without  a  trial  and  without  recourse, 
upon  the  sli<>litest  family  friction — such  an  exposure 
would  lead  the  people  of  the  i^tate  of  New  York  to  repeal 
the  said  illegal  lunacy  laws  now  doing  duty  in  the  Em- 
pire State  as  the  Land)ert  case  (siiirra) — parallel  in 
many  particulars  with  plaintiff's  ease — had  le<l  the  peo- 
ple of  the  State  of  California  to  at  once — upon  Lambert's 
case  becoming  known — repeal  their  Lunacy  Laws,  mod- 
eled, by  the  way,  exactly  upon  the  lines  of  said  present 
New  York  Lunacv  Laws — as  the  said  Lambert  case 
had  led  to  an  iiisfaiit  repeal  of  said  California  Lunacy 
Laws.  Such  an  exposure  would  entail  two  things  poig- 
nantly unpleasant  to  said  Medical-Examiners-in-Lunacy, 
It  should  be  observed  here  that  there  are  two  divisions 
of  New  York  Medical-Examiners-in-Lunacy.  Dirision 
one  represents  men  like  Austin  Flint,  Senior,  who  are, 
so  to  sjjeak,  unattached.  \\\u)  are  free  lances  in  Lunacy, 
whose  oath  is — on  the  evidence — at  the  disposal  of  the 
first  purchaser  with  a  sufficiently  long  purse.  Said,  so 
to  speak,  free  lance-in-Lunacy  nudves  a  large  part  of  said 
free  lance's  annual  income  from  declaring  people  insane. 
Readers  of  the  n(^ws])apers  will  note  the  frequency  of  said 
Austin  Flint,  Senior's,  nanu^  in  Lunacy  proceedings,  and 
the  rather  remarkable  fact  that  said  Austin  Flint  is 
always  opposed  to  the  liberty  and  sanity  of  the  citizen 
of  either  sex  who  is  fighting  his  or  her  wav  out  of  the 
clutches  of  The  Society  of  the  N(nv  York  Hospital  or 
out  of  the  clutches  of  some  other  Private  ^Madhouse. 
Dirisioii  tiro  represents  ^ledical-Examiners-in-Lunacy, 
like  Carlos  F.  Macdonald,  aforesaid,  who,  while  being 
free  lances  in  Lunacy  in  the  sense  that  said  gentlemen 
are  oiily  too  eager  to  earn  an  honest  penny  by  swearing 
a  sane  man  into  a  nmd-house  cell  for  life  on  a  false 
charge  of  insanity,  as  said  Macdonald  has,  on  the  evi- 
dence, done  in  ])iaintiff's  case — as  the  following  excerpt 


329 


from  the  said  deposition  of  said  Macdouald  proves,  to 
wit:  l*as;e  8()  ihid.  "Deponent  further  says  that  his 
opinions  expressed  at  the  time  of  the  second  interview 
hereil)efore  referred  to  in  April,  181)8,  have  been  cod- 
firmed,  and  that  the  said  Chanler  is  now,  in  his  opinion, 
u  hopeless  pat'dnoiae,  his  mental  disorder  being  inciir- 
ahle  (did  prof/ressire/'  Said  gentlemen  also  have  a 
habitat .  by  which  is  meant  said  ii,entlemen  are  also 
owners  or  lessees  of  Private  Madhoiises.  It  may  not  be 
generally  known,  that  that  all  dominating,  all  pervading 
monopoly  the  Standard  Oil  Company  has  also  had  its 
finger  in  Lunacy,  so  to  speak  as  follows:  A  multi-mil- 
lionaire Director  of  the  said  Standard  Oil  Company  was 
encumbered  by  an  alleged  insane  wife.  We  do  not  go 
so  far  as  to  say  that  the  lady  was  not,  or,  if  she  be  still 
alive,  is  not  now,  insane,  but  we  will  go  so  far  as  to  say 
that  were  she  perfectly  sane  the  following  performance 
upon  the  part  of  the  said  Multi-Millionaire  Director  in 
said  Standard  Oil  could  have  been  put  through  as 
smoothlv — as  thoroughlv  on  oiled  wheels  as  it  were — as 
said  performance  was,  on  the  evidence,  smoothly  put 
through.  The  said  performance  to  wit :  Said  Standard 
Oil  Director  first  placed  said  wife  in  the  tender  keeping 
of  said  Carlos  F.  :Macdonald  at  a  snug  little  retreat,  said 
to  be  leased  by  said  Macdonald  from  the  widow  of  the 
late  brother  of  the  Honorable  Joseph  Hodges  Choate — 
the  said  defunct  brother  having  been  said  Private  Mad- 
house's Proprietor  in  said  defunct  brother's  day.  Said 
snug  little  retreat  is  situated  in  the  pleasantly  named 
village  of  Pleasantville,  a  few  miles  north  of  White 
Plains  on  the  Harlem  Railroad.  According  to  the  pub- 
lic prints  the  price  paid  by  said  Standard  Oil  Director 
for  the  lodging  and  maintenance  of  said  lady  at  the 
hands  of  said  Carlos  F.  :Macdonald  is  enough  to  raise  the 
doubt  as  to  whether  or  not  said  exorbitant,  preposter- 


330 


OILS  Slim — which  makes  plaintiff's  one  hundred  dollars 
per  week  for  lod<;ing  and  maintenance  at  the  said  So- 
ciety of  the  New  York  Hospital  look  utterly  iusi<>ni- 
ficant — said  price  paid  said  Macdonald  by  said  Director 
is  sufficient  to  raise  the  doubt  as  to  whether  said  fabu- 
lous sum  is  not  more  in  the  nature  of  a  ransom  than  a 
payment  for  value  received.  Said  Standard  Oil  Director 
next  hies  him  South  to  a  State  wheres  money  is  not 
plenty.  Said  Standard  Oil  Director  next  sets  to  work 
to  control  the  legislature  of  said  Southern  State  with 
the  sole  view  of  passing-  through  said  Legislature  a  bill 
Maling  insanity  a  (/round  for  divorce.  The  conserva- 
tive ideas  on  divorce  in  the  South  are  well  known.  The 
South  boasts  the  only  State  in  the  Union  which  is  more 
orthodox,  more  (Christian,  so  to  speak,  than  the  Founder 
of  Christianity  Himself,  Who  did  admit  one  ground  for 
divorce,  said  unique  Southern  State — South  Carolina 
to  wit — admitting  none.  The  indignation  aroused  in  the 
public  mind  by  such  a  high  handed  proceeding — and 
upon  the  part  of  a  carpet-bagger  at  that — was  out- 
spoken. However,  as  is  often  the  case,  dollars  won  the 
day.  Whereupon  said  Standard  Oil  Director  promptly 
took  unto  himself  a  younger  nmte. 

One  would  think  that  said  Standard  Oil  Director  had 
sufficientlA'  whetted  said  Carlos  V.  ."\Iac(h)nahrs  interest 
in  having  as  an  inmate  of  said  Macdonald's  said  snug 
little  retreat  at  Pleasantville  for  as  ind(^fiiiite  a  period  as 
possible  a  "patient"  who  represented  such  a  si)lendid  in- 
come as  did  ex-wife  of  said  Standard  Oil  ^Magnate.  But 
said  Standard  Oil  ^lagnate  did  not  stop  here — the 
methods  of  said  Standard  Oil  ^Magnate  are  thorough  and 
far  reaching.  Said  Standard  Oil  Magnate  next  and  fin- 
ally, according  to  the  public  prints  of  the  day,  had  pro- 
ceedings set  on  foot  for  a  most  remarkable  piece  of  work, 
to-wit.     Said  Standai'd  Oil  Magnate  had,  according  to 


331 

said  pul»li<-  prints,  proceed iiiiis  set  on  foot  to  have  said 
Carlos  V.  Maedoiiald  appointed  the  C(mimittee  of  the 
person  and  estate — which  was  a  lari!,e  one — of  said  ex- 
wife.  What  became  of  the  matter  phiintiff  knows  not, 
since  said  matter  was  swiftly  hushed  up  thereafter  and 
— so  far  as  plaintiff  saw — never  again  appeared  in  print. 
8aid  extraordinary  performance,  the  putting  of  a  party's 
jailor  into  the  confidential  and  equitable  relation  of  Com- 
mittee of  said  party's  person  and  estate  is  so  gross  an  in- 
fraction of  even  common  prudence  as  to  need  no  com- 
ment. Let  us  hear  what  so  fair-minded  and  learned  an 
authority  as  Blackstone  has  to  say  upon  practically  the 
same  topic  to-wit:  ''Guardian  and  AVard.'-  But  with 
Guardian  and  Ward  this  differences  arises.  That  al- 
though a  ward  is  of  tender  years,  yet  a  ward  has  a  mind, 
yet  a  ward  has  intelligence,  yet  a  ward  has  common 
sense,  which  can  be  called  upon  by  said  ward  to  pro- 
tect said  ward  from  said  guardian,  should  said  guardian 
fail  in  said  guardian's  duty  toward  said  ward.  Not  so, 
however,  in  the  case  of  an  insane  person.  Here  the 
said  insane  person  is  utterly  helpless,  utterly  incapable 
of  looking  out  in  the  remotest  degree  for  said  insane 
person's  rights  of  person  and  property.  And  should  the 
Committee  of  the  person  and  estate  of  said  insane  per- 
son be  tempted  to  continue  to  confine  said  insane  per- 
son, after  said  insane  person  should  have  become  cured 
what  an  entrenched  position  would  said  committee  oc- 
cupy for  throwing  obstacles  in  the  way  of  said  now  -sane 
person's  communicating  with  the  outer  w^orld  and  procur- 
ing liberty  through  Jiahcas  corpus  proceeding.  Let  us 
hear  what  Blackstone  has  to  say  upon  the  subject  of 
putting  a  ward,  /.  c.  a  lunatic  into  the  hands  of  a  Guar- 
dian, /.  e.,  a  Committee  of  the  person  and  estate. 


332 

"Op  Guardian  and  AVard." 

"1.  The  <j;iiardiaii  witli  us  performs  the  office  both  of 
the  tutor  and  curator  of  the  Roiiiau  hiws;  the  former  of 
whic-h  liad  the  charge  of  the  maintenance  and  education 
of  the  minor,  the  hitter  the  care  of  his  fortune;  or,  ac- 
cording to  the  hmguage  of  the  Court  of  Chancery,  the 
tiitoi-  was  the  committee  of  the  person,  tlie  curator  tlie 
committee  of  the  estate.  But  this  office  was  frequently 
united  in  tlie  civil  law ;  as  it  is  always  in  our  law  with 
regard  to  minors,  though  as  to  lunatics,  and  idiots  it  is 
commonly  kept  distinct."  page  175. 

''Next  are  guardians  in  ■socage  *  *  *  These  take 
place  only  when  the  minor  is  entitled  to  some  estate 
in  lands,  and  then  by  the  common  law  the  guardian- 
ship  devolves  upon  his  next  of  kin,  to  whom  the  in- 
heritance cannot  possibly  descend;  as,  where  the  estate 
descended  from  his  father,  in  this  case  his  uncle  by  the 
mother's  side  cannot  possibly  iidierit  this  estate,  and 
therefore  shall  be  the  guardian.  For  the  law  judges  it 
improper  to  trust  the  person  of  an  infant  in  his  hands; 
who  may  by  possil>ility  become  heir  to  him;  that  there 
may  l)e  no  temptation,  nor  even  suspicion  of  tempta- 
tion, for  him  to  abuse  his  trust.  The  Roman  laws  pro- 
ceed on  a  (]uite  contrary  principle,  committing  the  care 
of  the  minor  to  him  who  is  the  next  to  succeed  to  the 
inheritance,  presuming  that  the  next  heir  would  take 
the  best  care  of  an  estate,  to  wdiicli  he  has  a  prospect  of 
succeeding;  and  this  they  boast  to  be  •^suinma  providen- 
tia."  But  in  the  meantime  they  seem  to  have  forgotten 
how  much  it  is  the  guardian's  interest  to  remove  the 
incumbrance  of  his  pupiFs  life  from  that  estate  for 
which  he  is  supposed  to  have  so  great  a  regard.  And 
this  affords  Fortes(iue  and  Sir  Edward  Coke  an  ample 
opportunity  for  triumph ;  they  affirming  that  to  com- 


333 


mit  the  custody  of  an  infant  to  liin)  that  is  next  in  snc- 
eession  is  "(fiidsi  afpuun  comiiiitterc  lupo,  ad  devorati- 
<hnn."  pp.  JT(),  177  and  178. 

As  we  see  Bhiekstone  says,  ''as  to  Innatics  and  idiots 
it  (the  Committeeship  of  the  person  and  the  Committee- 
ship of  the  estate)  is  commonly  kept  distinct."  The  rea- 
son for  this  is,  of  course,  obvious.  But  Blackstoue  is  not 
the  only  one  opposed  to  agiiiim  committerc  htpo  ad 
deroraiidinn.  Judi>(^  Lawrence  said  in  matter  of  O'Con- 
nell,  5  Law  Bull.  GO  (1883).  Motion  to  appoint  a 
Committee  of  a  lunatic  without  givinii'  security.  Held, 
doubtful  whether  Court  has  power.  "/  shall  not  appoint 
the  l-ceper  of  the  As}/lu)ii  as  Coiiuniftce."  While  in  Eng- 
land the  keeper  of  an  Asylum  is  so  s(iuinted  at  by  the 
law  that  said  keeper  is  regarded  with  disfavor  even  when 
attempting  to  ply  the  trade  of  a  Medical-Examiner-in- 
Luuacy,  as  said  Carlos  Macdonald  so  plies  said  trade, 
to-wit,  mounting  the  stand  and  passing  judgment  upon  a 
person's  sanity.  "The  petition  (in  lunacy)  should  be 
supported  by  affidavits  by  medical  men — preferahhj  un- 
connected with  lunatic  asylums.  (Note  2)  Re  Anon. 
1844,  Drur.  286.  Here  Sugden  L.  C.  refused  to  receive, 
in  support  of  an  application  for  an  inquisition,  a  cer- 
tificate hp  the  keeper  of  a  pricatc  lunatic  asi/lunt." 
Benton,  p.  259.  What  A>-ou]d  Blackstone  have  to  say 
about  ''turnin;/  orer  the  lanih  for  the  irolf  to  devour/' 
could  Blackstone  visit  once  more  the  scene  of  his  former 
activities,  in  the  case  of  *  *  *  into  the  hands  of 
said  Carlos  F.  ;Macdonald,  keeper  of  the  Private  Mad- 
House  at  Pleasantville?  The  motive,  therefore,  for  said 
Carlos  F.  Macdonald's  said  thinly  veiled  venom  against 
plaintifif  in  said  Proceedings  in  1899  is  not  far  to  seek. 
Neither  is  that  of  said  Macdonald's  side-partner,  so  to 
speak,  in  the  crime  said  Macdonald  and  said  Flint  per- 
petrated against  plaintiff  in — upon  the  evidence — swear- 


334 

iuo  that  plaiutitf  was  hopelessly  and  increasingly  hope- 
lessly insane  and  incompetent,  whereas,  on  the  evidence, 
said  gentlemen  were  forced  to  observe  that  plaintiff  was 
merely  a  student  in  Experimental  Psychology,  who  could 
pretty  much  at  will  enter  a  trance.  Said  :\[acdonald 
and  said  Flint  were  well  aware  of  plaiutitiV  attitude 
towards  Medical-Examiners-in-Lunacy.  Plaintiff  had 
said  to  said  gentlemen  what  plaintiff  later  wrote  under 
date  :\[arch  26,  1900,  to  said  first  New  York  lawyer,  to- 
wit,  ''It  is  a  duel  to  the  death  between  me  and  the  So- 
ciety of  the  New  York  Hospital  and  its  allied  private 
insane  asylums — with  which  this  State  is  honeycombed — 
and  their  allied  Medical-Examiners-in-Lunacy,  whom  I'd 
prove  on  the  evidence  to  be  a  gang  of  professional  per- 
jurers, a  gang  of  "cappers,"  and  "barkers,''  and  "pullers- 
in"  for  the  private  insane  asylums  with  which  the  Em- 
pire State  is  mined."  Said  gentlemen  very  well  knew 
that  if  plaintiff  ever  emerged  alive  from  the  confines  of 
the  Society  of  the  New  York  Hospital  aforesaid  that 
said  gentlemen's  professional  emoluments  would — to  put 
it  mildly — be  largely  curtailed.  Provided  the  American 
people  ever  wake  up  to  the  peril  and  scandal  lurking  in 
their  lunacy  laws,  as  the  Englisli  people  did  upon  the 
appearance  of  Charles  Reade's  epochal  and  revolutioniz- 
ing book  on  lunacy  practices,  entitled  "Very  Hard  Cash." 
It  was  therefore  to  the  pecuniary  and  professional  in- 
terest of  said  Macdonald  and  Flint  to  so  tie  up  plaintiff 
in  the  fetters  of  insanity  and  incompetency  by  said  gen- 
tlemen's, on  the  evidence,  false  swearing  that  plaintiff* 
could  never  get  out  and  sliow  said  gentlemen  up.  With 
plaintiff'  at  large  and  in  a  State  wliere  plaintiff'  could 
speak  freely  and  M-rite  freely  without  danger  of  life- 
imprisonment  upon  a  false  charge  of  insanity  Othello's 
occupation  would  be  gone,  for  said  Medical-Examiners- 
in-Luuacy;  by  which  we  mean  that  the  public  would. 


335 


oiu-e  the  public  j;raspe(l  the  real  sit  nation,  set  metes  ami 
bounds  to  the  now  tyrannical  satrap-like  power  of  life- 
imprisonment  exercised  in  their  <-alling  by  New  York 
^ledical-T^xaminers-in- Lunacy. 

What  would  Blackstone,  I'^trtescpie  and  Sir  lOdward 
Coke  have  said  to  naniin<>  as  Committee  of  an  alleged 
lunatic,  and  his  large  fortune,  the  law-partner  of  (me  of 
the  projjrietors  of  the  mad-house  to  wliich  said  alleged 
lunatic  A\as  consigned  for  life,  on  perjured  charges, 
without  either  notice  of  the  proceedings  had  against  him, 
or  opportunity  to  appear  and  be  heard  in  defense  of  his 
goods  and  himself? 

Here  Sugden,  L.  C,  refused  to  receive  in  support  of 
an  application  for  an  incpiisition  a  certificate  by  the 
keeper  of  a  private  lunatic  asylum."     Kenton,  p.  259. 

What  would  Sir  A\'m.  Blackstone,  Fortesque  and  Sir 
Edwar<l  Coke,  what  >N<)uld  these  ju'ofoundly  learned 
jurists  and  great  men,  have  to  say  about  (if/innii  coni- 
iiiittci-c  liijXK  (1(1  devoraiidnmf 

^Ve  shall  now  conclude  the  discussion  of  the  question 
as  to  what  c(mstitutes  sanity  as  distinguished  fnmi  in- 
sanity. 

1.  The  dot  nments  annexed  to  plaintilfV  affidavit  and 
the  documents  annexed  to  this  brief  will  show  that  wc 
shall  prove  in  this  case  that  plaintiff  has  always  been 
sane  and  competent.  In  note  in  43  Am.  St.  Bep.  531,  it 
was  said  :  In  a  lunacy  proceeding  the  unsoundness  of 
the  mind  is  the  essential  thing,  and  must  be  clearly  es- 
tablished as  an  independent  proposition  :  ///  yr  l>(]iaiiL 
40  How.  Pr.,  204;  An  inciuisition  dc  hniafico  iiKfiiirciido 
simply  makes  a  prima  facie  case. 

"We  here  insert  excerpts  from  HiilrJiinson  V.  Saiidf, 
26  American  Decisions,  i)age  127  (4  Rawle,  234). 

''An  inquisition  finding  that  a  person  is  and  for  five 
years  has  been  of  unsound  mind,  and  incapable  of  manag- 


336 


ing  his  estate,  is  admissible  in  evidence  as  against  the 
grantees  of  the  alleged  lunatic,  for  the  purpose  of  avoid- 
ing his  deed  to  them, 

"Such  in(|uisiti<m  is  pr'niKi  facie  evidence  only,  and 
may  be  rebutted  by  the  showing  that  the  alleged  lunatic 
was  not  insane,  or  that  he  had  lucid  intervals,  dur- 
ing one  of  which   tlic  deiMl   in   (juestion   was  executed. 

*  *     * 

Ejectment,  both  parties  claiming  title  under  Andrew 
Hutchinson,  deceased;  the  plaintiifs  as  his  heirs,  and 
the  defendant  under  a  deed  executed  by  him  in  1817. 
The  plaintiffs,  to  avoid  the  effect  of  this  deed,  offered  in 
evidence  an  inquisition  taken  in  February,  1818,  under 
a  commission  in  the  nature  of  a  writ  De  Lunatico  In- 
QUiREXDO.  by  which,  among  other  things,  it  was  found 
'that  the  said  Andrew  Hutchinson,  at  the  time  of  taking 
this  inciuisition,  is  of  unsound  mind,  memory  and  capa- 
city, so  that  he  is  not  capable  of  governing  himself  or 
managing  his  estate;  and  that  said  Andrew  Hutchinson 
hath  been  in  said  state  of  unsound  mind,  memory  and 
capacity  for  the  space  of  five  years  last  past  and  up- 
wards.' In  April,  1818,  this  inquisition  was  confirmed 
by  the  court,  and  committees  of  his  person  and  estate 
appointed : 

"The  defendants  then  otfered  evidence  tending  to  prove 
that  Andrew  Hutchinson  was  not  a  lunatic ;  that  he  was 

subject  to  fits  only,  and  had  many  lucid  intervals,  etc. 

*  *     * 

"Under  the  directions  of  the  judge  the  jury  found  for 
the  defendants.  Plaintiffs  moved  for  a  new  trial,  which 
being  refused,  they  appealed  to  this  court.     *     *     * 

"By  the  Court,  Kennedy,  J. :  'The  inquisition  had 
been  given  in  evidence  by  the  plaintiffs  to  show  that 
Andrew  Hutchinson  was,  ar  the  time  the  deed  of  con- 
veyance purported  to  have  been  executed  by  him,  to  wdt, 


337 


on  the  fifteenth  of  November,  181 7,  and  under  which  the 
defendants  claimed,  of  unsound  mind  and  incompetent 
to  make  such  an  instrument.  It  was  doubtless  admis- 
sible for  this  purpose,  altliouiih  entirely  an  c.v  jxirtc  pro- 
ceeding' as  respected  the  iirantees  in  the  deed,  but  for  this 
reason  of  its  beinjn  cr  parte  it  is  ou\y  jiiimd  facie  evi- 
dence at  most  of  Andrew  Hutchinson's  insanity,  and 
liable  to  be  rebutted  and  done  away  by  the  testimony  of 
those  who  were  acquitted  and  conversant  with  him  dur- 
ing that  period,  and  knew  him  to  be  of  sound  nnnd,  or 
that  he  had  at  least  lucid  intervals,  and  that  the  deed 
was  executed  by  him  at  one  of  those  times.     *     *     * 

"The  decision  of  the  circuit  court,  overruling  the  mo- 
tion for  a  n(^w  trial,  is  reversed,  the  verdict  set  aside, 
and  a  new  trial  granted." 

We  next  insert  excerpts  from  TifJoir  \.  Titloic,  93 
American  Decisions,  page  691.  (54  Pennsylvania  State, 
21G.) 

By  Court,  Strong,  J. :  "The  general  principle^  is,  that 
an  inquisition  of  lunacy  found  is  prima  facie  evidence 
in  cases  involving  the  sanity  of  the  lunatic,  and  no  more ; 
such  is  the  doctrine  of  all  our  cases.     *      ^     * 

Gangweress  Estate,  /</.  117  (  53  Am.  Dec.  554  ) .  In  the 
latter  of  tliese  cases  it  was  distinctly  ruled  that  an  in- 
quisition of  lunacy  finding  the  party  a  lunatic  without 
lucid  intervals  was  prima  facie  evidence  (mly,  and  not 
conclusive,  and  a  petitioner  for  the  proceeding  was  not 
estopped  from  asserting  the  truth  against  it,  and  show- 
ing that  tlie  party  had  lucid  intervals  :  See  also  Hiitcli  iii- 
soit  v.  Saiidf.  4  Eawle,  234. 

Dei(  e.>-  Deiii.  of  Alxr  v.  (larl\  IS  American  Decisions, 
page  417  (5  Ilalstead,  217).     Ewing,  O.  J.,  said: 

(22) 


338 


"111  S('i-(/cs<)ii  V.  i<c<Ucii,  •!  Atk.  412,  Lord  Hardwicke 
overriikMl  the  objection  and  said  that  'iniiuisitions  of 
Innacy  are  always  permitted  to  be  read,  but  are  not  con- 
clusive evidence ;  for  you  may  traverse  them  if  you  please. 

In  c.v  parte  Barnsley,  3  Atk.  184,  Lord  Hardwicke 
said:  "In  all  these  in([uisitious  they  are  not  at  all  con- 
clusive, for  they  may  bring  actions  at  law,  or  a  bill  to  set 
aside  conveyances.     *     *     *" 

In  Ha] J  v.  Warroi,  9  Ves.  603,  The  master  of  rolls 
said  :  "That  in(]uisition  havinij;'  been  taken  in  the  absence 
of  the  plaintiff  is  not  conclusive  up(Ui  him.  But  it  is 
prima  facie  evidence  of  the  lunacy.  It  is,  however,  com- 
petent to  third  parties  to  dispute  the  fact  and  to  main- 
tain that,  notwithstanding  the  inciuisitiou,  the  object  of 
it  was  of  sound  mind  at  any  period  of  the  time  which  it 
covers.     *     *     *" 

Maddox,  in  his  treatise  on  chancery  practice,  states 
the  following  doctrine:  "An  inquisition  is  only  presump- 
tive evidence  of  insanity,  and  not  conclusive,  so  that  upon 
an  action  in  respect  to  anv  contract  or  deed,  it  is  for  a 
jury  to  determine  whetlun*  at  the  time  of  executing  it, 
the  party  was  )i<ni  eoni/tos,  though  by  the  iuqui.sition  he 
was  found  to  be  noii  compos  at  such  a  period":  2  Madd. 
578. 

I^^'kom  these  citations  the  following  conclusions 
ARE  deiucible: 

L  An  iiKiuisition  of  lunacv  is  not  conclusive  against 
any  person  not  a  ])arty  to  it. 

2.     When  an  inquisition  is  admitted  in  evidence,  the 


339 


party  against  whom  it  is  used  may  introduce  proof  that 
the  alleged  lunatic  was  of  sound  mind  at  smj  period  of 
the  time  covered  by  the  inquisition.  The  position  is,  in- 
deed, a  corollary  from  the  former,  as  it  would  be  incon- 
sistent to  say  the  inijuisition  was  not  conclusive  and  at 
the  same  time  to  refuse  to  receive  an^-  evidence  to  contra- 
dict the  fact  stated  in  it.     *     '^   '  " 

In  page  301,  Phillips  speaks  -of  the  in(iuisition  of 
lunacy.  He  says  it  is  evidence  against  third  persons 
who  were  strangers  to  the  proceedings.  He  does  not 
directly  say  whether  conclusive  or  prima  facie,  though 
his  meaning  cannot  readily  be  misunderstood;  but  to 
support  his  position  he  cites  the  case  already  mentioned 
of  Hergeson  v.  i^vale,  in  which  Lord  Hardwicke  says  it 
mav  be  read,  but  it  is  not  conclusive.     *     *     * 

Such  is  the  diversity  of  judgment  respecting  the  state 
of  the  mind,  that  on  this,  more  than  perhaps  any  other 
question,  error  may  be  anticipated  from  uncontroverted 
proofs  and  e.r  parte  examinations. 

The  Executors  of  William  B.  Hill,  deceased,  v.  Ed- 
ward Daij,  et  al.,  34  New  Jersey  Equity,  150. 

Van  Yleet,  Y.  C,  said:  "IF/ic/'c  tliere  is  no  reason 
to  suspect  fraad,  the  test  in  this  class  of  cases  is,  Did 
the  person  irhose  act  is  challenged  possess  sufficient 
mind  to  understand  in  a  reasonahle  manner  the  nature 
and  effect  of  the  act  he  was  doing,  or  the  business  Jw 
was  transacting?  He  may  he  old,  or  enfeebled  by  dis- 
ease, or  irrational  upon  some  topics,  and  yet  possess 
suff'icicnt  mind  to  malxc  a  valid  disposition  of  his  prop- 
erty. In  the  absence  of  fraud  or  imposition,  the  only 
question  the  court  is  required  to  decide  is,  Did  the  per- 
son whose  act  is  challenged  clearly  understand  and  com- 
prehend what  he  was  doing  when  he  did,  itf  *  *  * 
These  remarks  show  a  good  memory,  ancl  clear  under- 


340 


standing  aud  judgment.  He  remembered  what  he  had 
done,  the  motive  which  had  influenced  liim,  and  that  his 
judgment  approved  his  conduct  until  new  influences 
were  brouglit  to  bear  upon  it,  and  then  tlmt  liis  judg- 
ment underwent  a  change,  and  he  wanted  the  mortgage 
returned  to  him.  *  *  *  jjis  conduct  and  speech  not 
only  show  tliat  he  knew  what  he  was  doing,  but  that 
he  was  capable  of  exercising  ordinary  caution  aud  dis- 
cretion.    ♦     ♦     ♦ 

'^Contemporaneous  conduct  or  demeanor,  constitut- 
ing part  of  the  transaction  brought  under  review,  is  al- 
ways entitled  to  very  grave  consideration  in  cases  of  this 
kind.  It  i>enerallv  portravs  much  more  truthfullv  what 
a  witness  understood,  thought,  or  believed,  at  the  moment 
than  words  subsequently  spoken,  even  when  they  are  ut- 
tered under  the  sanction  of  an  oath."     *     *     * 

Citing  again  said  note  in  43  Am.  St.  Rep.  531,  "Tf 
the  party  charged  testifies,  his  conduct  is  to  be  con- 
sidered by  the  jury  as  the  conduct  of  any  other  wit- 
ness is  considered  :  Fiscus  v.  Turner,  125  Ind.  46.  And 
he  has  the  right  to  appear  and  testify  before  the  jury : 
7  Abb.  N.  C.  417." 

In  Comriionii'cultli  v.  Haskell,  2  Brewst.,  491,  we  find 
the  following  proposition,  viz. :  "That  insanity  is  a  men- 
tal disease,  and  must  indicate  a  change  in  the  normal 
condition;  tJiat  a  chaiif/e  is  not,  of  course,  conclusive  evi- 
dence of  insaiiiiij,  for  it  niajj  he  unattended  hy  any 
sijinjttoius  of  disturl}ance,  aud  niai)  he  marked  hy  pro- 
prietji  and  nioder<(tion ;  that  mere  eccentricity  or  pecu- 
liarity is  not  evidence  of  insanity  where  it  is  shoion  to 
he  the  normal  characteristic  of  the  defendant ;  that  mere 
weakness  of  intellect  is  not  of  itself  sufficient  to  estab- 
lish insanity,  for  it  may  co-exist  with  some  degree  of 


341 


power;  that  one  tvho  alleges  the  insanity  of  himself  or 
of  another  must  prove  it;  that  the  presence  of  insanity 
is  to  be  detected  by  comparino-  the  symptoms  of  the  de- 
fendant with  the  standard  of  health,  taking  into  con- 
sideration the  habits  and  peculiarities  of  the  defendant 
when  sane,  and  h)oking  to  the  causes  producing  the 
change;  *  *  *  iJiai  the  test  in  eases  of  insanity 
lies  in  the  word  ''potoer' — has  the  defendant  in  a  crim- 
inal case  the  power  to  distinguish  right  from  wrong,  and 
the  power  to  adhere  to  the  right  and  avoid  the  wrong? 
— in  other  cases,  has  the  defendant,  in  addition  to  the 
capacities  mentioned,  the  power  to  govern  his  mind,  his 
body  and  his  estate?  tliat  the  issue  in  a  proceeding  of 
lunacv  is,  whether  the  defendant  has  been  so  far  de- 
prived  of  his  reason  and  understanding  as  to  be  unable 
to  govern  himself  or  to  manage  his  affairs;  *  *  * 
that  the  finding  of  the  original  jury  upon  the  petition 
is  not  rridenee  before  the  jury  who  try  the  traverse; 
that  the  commonwealth  having  first  shown  that  the 
defendant  in  a  lunacy  proceeding  was  insane  before 
the  filing  of  the  petition,  may  prove  his  mental  condition 
up  to  the  time  of  the  trial;  that  it  having  shown  vio- 
lence of  the  defendant  toward  his  wife,  may  ask  the 
witness  "What  Avas  the  conduct  of  the  wife?"  and  that 
it  hariiig  read  in  evidence  as  proof  of  delusion  a  letter 
from  the  defendant  charging  others  ivith  serious  crime, 
it  is  competent  for  the  defendant  to  prove  that  one  of 
the  charges  iras  not  a  delusion,  hut  a  fact.  *  *  * 
Statutes  requiring  a  party  charged  with  insanity  to  be 
produced  in  open  court,  when  possible,  are  designed  to 
prevent  fraud  in  the  procuring  of  verdicts  of  insanity 
without  affording  the  defendant  an  opportunity  of  be- 
ing heard:    Fiscus  v.  Turner,  125  Ind.  46." 

Mr.  Justice  Harlan   (in  the  Runk  case,  supra)   thus 


342 


delined  what  oonstituted  sanity  as  opposed  to  insanity: 
"What  constitntes  insanity,  in  the  sense  in  which  we 
are  using'  the  term,  has  been  described  to  you,  and  need 
not  be  repeated.     If  this  man   understood   the   conse- 
quences and  effects  of  ivhat  he  was  doing  or  contem- 
plating, to  himself  and  to  others,  if  he  understood  the 
wrongfulness  of  it,  as  a  sane  man  would,  then  he  was 
SANE,  so  far  as  we  have  occasion  to  consider  the  sub- 
ject.    *     *     *     I  therefore  charge  you  that  if  he  was  in 
a  sane  condition  of  mind  at  the  time,   as   I  have  de- 
scribed,   able    to    understand    the  moral  character  and 
consequences  of  his  act,  his  suicide  is  a  defense  to  this 
suit.     The  only  question,  therefore,  for  consideration  is 
this  question  of  sanity.     There  is  nothing  else  in  the 
case."     A  perusal  of  the  above  will  prove  that  the  Su- 
preme Court  of  the  United  States  supports  plaintiff's 
aforesaid   contention   touching  sanity  and   also   touch- 
ing the  test  as  to  whether  a  party  is  sane  or  insane. 
As  said  above,  Plaintiff  maintains  that  sanity  is  shown 
by  the  action  of  a  party's  mind  not  by  the  action  of  a 
party's    muscles.      Plaintiff    maintains    that  sanity  is 
shown  by  the  words  uttered  by  a  party's  tongue  rather 
than  by  the  question  as  to  whether  the  party's  tongue 
Avas  "coated"  or  not  "coated."    Plaintiff  maintains  that 
sanity  is  shown  by  the  question  as  to  whether  or  not 
said  party's  ideas  are  normal  rather  than  by  the  ques- 
tion as  to  whether  or  not  said  party's  pupils  are  normal. 
AVhat  is  insanity?    Suppose  a  law  should  be  enacted  to 
the  effect  that  certain  acts  or  thoughts  would  be  suffi- 
cient proof  of  mental   derangement,  and  that   upon   a 
trial,   the  facts  appearing,   the   Court  should  direcf  a 
verdict  accordingly,   and   property   or   freedom   should 
thus  be  wrested  from   the  defendant.     Would  such   a 
proceeding   constitute   due   process   of  law?     And   yet 


34a 


siieli  a  ]>rep()stei'()iis,  such  a  inoclianical,  siicli  a  charla- 
taiiisli  test  of  insanity  is  today  set  b^^  so-called  exports 
ill  insanity,  who  ulcaii  certain  physical,  mechanical, 
nmscular  actions  which  sometimes  follow  insanity  and 
— to  use  a  technical  phrase — mistaking'  aii.i'iliarij  for 
positive — impudently  place   the   cart   before  the  horse. 

Lastly,  as  Kenton  says  in  "The  Law  of  and  Practice 
in  Lunacy,"  Loudon,  180(5,  the  old  way  of  proving 
sanity  was  finding  out  whether  a  man  could  count, 
could  tell  who  his  parents  were  and  knew  his  own  name, 
etc.  AVith  the  increase  of  the  complexity  of  life  this 
simx^le  test  falls  behind  the  times  nowadays,  but  its 
principle  still  holds  true,  namely  that  the  test  of  sanity 
is  a  mental  test  Avholly  within  the  i)ower  of  the  accused 
to  accomplish  and  without  any  witnesses  professional 
or  lay  to  back  him  up.  Suppose  two  paid  experts  in  in- 
sanity, ill  the  pay  of  the  other  side  swear  that  the  de- 
fendant can  not  tell  what  his  past  history  has  been,  that 
said  defendant's  mind  is  a  total  blank  upon  that  subject. 
Would  that  professional  and  ]iai(l  and  interested  oath 
stand  against  the  defendant's  refutation  thereof  by  tak- 
ing the  stand  and  promptly  and  lucidly  giving  his  past 
history,  provided  he  were  afforded  his  legal  privilege 
of  taking  the  stand  in  place  of  being  kept  away  from 
Court  and  having  to  allow  his  liberty  and  property  to 
be  perjured  a^^ay  from  him  in  his  enforced  absence? 

The  said  decision  in  the  said  Runk  case  proves  con- 
clusively that  a  written  instrument — written  by  the 
party  committing  suicide  prior  but  close  to  said  time 
of  said  suicide — proves  conclusively  that  said  written 
instrument  does  successfully  offset  the  prima  facie  pre- 
sumption of,  and  prima,  facie  evidence  of,  insanity  which 
said  act  of  suicide  entails — suicide  being  in  itself  pre- 
sumptive   proof    of    insanity,  its  name  being  suicidal 


344 


mania — in  the  eate<i,()ry  of  iusaiiity.  In  a  word,  that 
a  written  instrument  written  by  an  alleged  lunatic  at 
the  time  of  said  alleged  lunacy  can  and  does  success- 
full}^  offset  medical  evidence  of  said  alleged  lunacy.  In 
a  word,  that  the  mind — not  tJic  hodi) — is  the  seat  of 
sanitjj  or  insanity,  and  as  tJic  nnnd  acts  so  is  the  party 
proved  sane  or  insane  tlierehy. 

Mr.  Justice  Harlan  says  "He  (Runk  )  left  for  the  guid- 
ance of  his  executor  a  memorandum  of  his  business  af- 
fairs prepared,  just  before  his  death,  and  which  tended 
to  show  that  he  was  at  that  time  entirely  at  himself." 
We  contidently  rest  upon  plaintiff's  said  letter  under 
date  of  July  3rd,  1897 — of  over  30  pages  of  typewriting 
— written  to  plaintiff's  then  proposed  counsel,  Hon. 
Micajah  Woods,  Commonwealth's  Attorney  of  Albe- 
marle County,  Virginia,  acknowledged  by  letter  and 
returned  by  said  AA'oods  in  11)00;  we  confidently  rest 
upon  ]>laintiff's  said  letter  written  within  four  months 
of  the  date  of  plaintiff's  said  arrest  and  incarceration 
in  The  Society  of  the  New  York  Hospital  at  White 
Plains,  we  contidentlv  rest  thereon  together  with  this 
brief,  written  by  plaintiff,  to  prove  that  not  only  was 
plaintiff,  in  the  words  of  the  learned  ^Ir.  Justice  Har- 
lan, "entirely  at  himself,"  at  the  time  of  said  writing 
and  since,  but  also,  on  the  evidence  contained  in  said 
letter,  corrol)orated  as  aforesaid  by  third  parties — that 
plaintiff  was  at  himself  during  the  period  precedent  to 
])laintiff"s  said  arrest,  in  which  said  period  the  said 
other  side  falsely,  upon  said  evidence,  allege  plaintiff  to 
have  been  of  unsound  mind;  that  Mr.  Jnstice  Harlan 
/lesciihcs  a  sane  man  (supra)  as  one  ndio  ''nnderstooa 
the  eon^eifnenees  and  effects  of  n'hat  he  icas  doing;" 
said  hitcf  of  plaintiff  nnder  date  of  July  3d,  1897,  snrely 
prorcd  that  plain! iff  "understood  the  eonsequences  and 


345 


effects  of  wliat  lie  was  doing"  tvheii  plaintiff  icrote  said 
lettcf:  xdid  jdaintiff,  when  plaintiff  wrote  said  letter, 
accordiiifj  to  U r.  Justice  Harlan,  at  all  events,  was  sane; 
and  the  same  rrasoninfj  holds  f/ood  toiicJiing  said  brief 


V 


PoixT  10.  The  said  proceed iiigs  iu  1899  were  void 
for  the  reason  that  the  only  evidence  of  plaintiff's  alleged 
incompetency  came  from  two  medical  men  in  the  pay 
of  the  said  petitioners,  and  froni  the  medical  man  in 
charge  of  the  Society  of  the  New  York  Hosi>ital  where 
plaintiff'  was  confined,  and  to  whose  pecuniary  interest 
it  was  therefore — plaintiff'  being  the  highest  pa3^  (falsely 
alleged)  ''patient"  in  said  hospital — to  keep  plaintiff'  in 
said  hospital  as  long  as  he  could;  and  said  paid  for  or 
otherwise  pecuniary  interested,  evidence,  standing  un- 
contradicted— for  the  reason  aforesaid  that  plaintiff"  was 
by  said  contrivance  aforesaid  kept  out  of  Court  and 
therefore  was  unable  to  contradict  said  evidence — said 
evidence  standing  uncontradicted  was  not  a  valid  foun- 
dation for  the  judgment  which  folloA\'ed. 

^aid  evidence  being,  upon  the  evidence,  under  said 
circiiin.stances  ex  parte  icas  therefore  of  no  arail. 

Point  17.  Even  if  the  judgment  of  the  New  York 
State  Courts  in  1897  and  1899  aforesaid,  wer(^  not  totally 
null  and  void  for  the  reasons  aforesaid,  the  said  judg- 
ments are  now  functus  officio  for  the  reason  that  they 
have  nothing  to  feed  upon,  a  judgment  in  insanity  self- 
evidently — since  insanity  is  not  always  incurable — not 
being  a  continuing  one,  and  plaintiff  having  been  found 
to  be  both  sane  and  competent,  as  well  as  a  citizen  of  Vir- 
ginia, by  the  said  judgment  rendered  Novembei'  (i,  1901, 
by  the  said  Virginia  Court  (Plaintiff's  Exhil)it  7  for 
identification ) . 


346 


Point  18.  Upon  the  above  <irouiKls  of  fmud,  waut  of 
jurisdiction,  laclv  of  dw  process  of  law,  unconstitu- 
tionality, ille*>ality,  nullity  and  fiinctiis  officio  the  said 
New  York  proceedings  may  be  attacked  collaterally; 
and  T.  T.  Sliernian,  the  so-callc^l  committee  of  plaintilf  s 
person  and  estate,  wlio  is  merely  a  Trustee  cr  maleficio 
may  be  assailed  as  a  trespasser  upon  plaintiff's  property. 

Point  U).  Plaintiff  being  a  citizen  of  Virginia,  and 
the  said  alleged  committee  of  plaintiff's  person  and  es- 
tate being  a  citizen  of  New  York  and  doing  business 
in  New  York  (Jity,  and  the  amount  in  controversy  being 
over  three  thousand  dollars,  the  Federal  Circuit  Court 
for  the  Southern  District  of  New  York  has  jurisdiction. 

(In  conclusion,  if  the  Court  please,  let  us  now  hear 
Blackstoue  thunder  from  the  C'ommou  law — that  un- 
surpassed body  of  law,  which  is  the  law  of  the  United 
States  save  Louisiana,  under  the  Code  Napoleon.) 

THE  ABSOLUTE  RIGHTS  OF  THE  INDIVIDUAL. 

(  From  Brief  in  (lidloncr  <i</<(inst  Shcrmdii,  pp.  845-847.) 

(1)  ''For  the  principal  aim  of  society  is  to  protect 
individuals  in  the  enjoyment  of  those  absolute  rights, 
which  were  vested  in  them  by  the  immutable  laws  of 
nature;  but  which  could  not  be  preserved  in  peace  with- 
out that  mutual  assistance  and  intercourse  which  is 
gained  by  the  institution  of  friendly  and  social  com- 
munities. Hence  it  follows,  that  the  first  and  i)rimary 
end  of  human  laws  is  to  maintain  and  regulate  these 
absolute  rights  of  individuals.  Such  rights  are  social 
and  relative  result  from,  and  are  posterior  to,  the  fornm- 
tion  of  states  and  societies,  so  that  to  maintain  and 
regulate  these,   is   clearly  a   subsequent   consideration. 


347 


And  thei'cfore  the  principal  view  of  humau  laws  is,  or 
ought  always  to  be,  to  explain,  protect  and  enforce 
such  rights  as  are  absolute,  which  in  themselves  are  few 
and  simple;  and  then  such  rights  as  are  relative,  which, 
arising  from  a  variety  of  connections,  will  be  far  more 
numerous  and  more  complicated.  These  will  take  up  a 
greater  space  in  any  code  of  laws,  and  hence  may  ap- 
pear to  be  more  intended  to,  though  in  reality  they  are 
not,  than  the  rights  of  the  former  kind,"  pages  63  and 
64. 

(2)  "To  bereave  a  man  of  lif(%  or  hi/  riolerice  to  con- 
pHcatc  his  ('st(if<\  irilJioiif  (iccii.^dlioii  or  trial,  would  he 
so  gross  and  notorious  <ni  uct  of  dcspotisiii,  as  must 
at  once  convev  the  alarm  of  tvrannv  throughout  tlie 
whole  kingdom;  but  confinement  of  the  person,  hif  secret- 
ly hurryin<i  him  to  gaol,  ivhere  his  sufferings  are  un- 
knouvi  or  forgotten,  is  a  less  puhlic,  a  less  striJx-ing,  and-, 
therefore,  a  more  dangerous  engine  of  arhitrary  gov- 
ernment-'    *     *     *      (p.  75). 

(3)  *  *  *  "In  vain  may  it  be  urged  that  the  good 
of  the  individual  ought  to  ^aeld  to  that  of  the  com- 
munity; for  it  would  be  dangerous  to  allow  any  private 
man,  or  even  any  public  tribunal,  to  l)e  the  judge  of  this 
common  good,  and  to  decide  whether  it  be  expedient  or 
no.  Besides,  the  puhlic  good  is  nothing  more  essentially 
interested  than  in  the  protection  of  crery  individuaVs 
private  right  as  modeled  hy  the  municipal  lavy-  (p.  78). 

(4)  *  *  *  "In  these  several  articles  consist  the 
rights,  or,  they  are  frequently  termed,  the  liberties  of 
Englishmen ;  liberties  more  generallv  talked  of,  than 
thoroughly  understood;  and  yet  highly  necessary  to  be 
perfectlv  known  and  considered  bv  everv  man  of  rank 
and  property,  lest  his  ignorance  of  the  points  whereon 
they  are  founded  should  hurry  him  into  faction  and  licen- 
tiousness on  the  one  hand,  or  a  pusillanimous  indiffer- 


348 


ence  and  criminal  snbniission  on  the  other.  And  we  have 
seen  that  these  rights  consist,  primarily,  in  the  free  en- 
joyment of  personal  security,  of  personal  liberty  and  of 
private  property.  So  long  as  these  remain  inviolate,  the 
subject  is  perfectly  free;  for  every  species  of  compul- 
sive tyranny  and  oppression  must  act  in  opposition  to 
one  or  other  of  these  rights,  having  no  other  object  upon 
which  it  can  possibly  be  employed"  (p.  84). 

(5)  *  *  *  "And  hence  it  is  that  our  lawyers  are 
with  justice  so  copious  in  their  encomiums  on  the  reason 
of  the  common  law;  that  they  tell  us,  that  the  law  is  the 
perfection  of  reason,  that  it  always  intends  to  conform 
thereto,  and  that  what  is  not  reason  is  not  law.  Not  that 
the  particular  reason  of  every  rule  in  the  law  can  at  this 
distance  of  time  be  always  precisely  assigned;  but  it  is 
sufficient  that  there  he  nothing  in  the  rule  flatly  con- 
tradictory to  reason,  and  then  the  law  will  presume  it 
to  be  well  founded"     *     *     *      (p.  36) . 

(6)  *  *  *  ''When  a  custom  is  actually  proved  to 
exist,  the  next  inquiry  is  into  the  legality  of  it;  for, 
if  it  is  not  a  good  custom,  it  ought  to  be  no  longer  used ; 
malus  usus  abolendus  est*  is  an  established  maxim  of 
the  law"     *     *     *     (p.  43). 

We  said  above,  "arresting  and  imprisoning  a  law- 
abiding  member  of  the  legal  profession  *  *  *  for 
no  other  crime  than  that  of  entering  a  harmless  trance 
at  the  request  of  /)se?<r/o-scientists  who  pretended  an  in- 
terest therein."    We  were  in  error.    There  was  one  other 


*As  a  law-writer  we  respectfully  submit  that  against  the  illegal 
custom  of  imprisoning  alleged  lunatics  for  life,  and  sequestrating 
their  estates,  sans  notice,  sans  opportunity  to  appear  and  be  heard, 
and  sans  the  privilege  extended  alleged  burglars  and  rapists,  to-wit: 
trial,  not  in  absentia,  not  twenty-five  miles  off — not  twenty-five  miles 
out  of  sight  of  the  jury — but  in  their  presence  in  open  court,  or, 
in  extreme  cases,  in  their  presence  in  camera — as  a  law-writer  we 
respectfully  submit,  that  against  said  scandalous  custom,  aforesaid, 
should— and  without  delay— be  trained  Blackstone's  maxim:  "malus 
usus  aholendus   est." 


349 


crime — for  wliicli  plaintitf  was  arrested  and  impris<^>ued 
for  life  by  the  Supreme  Court  of  New  York — that  of  be- 
ing a  vegetarian.  A  juror :  ''Q.  I  notice  in  the  certi- 
ficate (of  lunacy  in  the  proceedings  of  1897),  that  he 
only  took  certain  articles  of  food  about  two  years  ago, 
restricting  himself  to  diet:  does  he  still  do  that?  A. 
(Bv  Dr.  S.  B.  Ltou)  :  He  still  continues  vegetable  diet, 
I  am  not  aware  that  he  has  eaten  any  meat  since  he  was 
with  us"  (p.  14,  Proceedings,  1899)  (Transcript  of 
Record,  pp.  230-231). 


350 


BRIEF-IN-REBUTTAL 

As  we  will  not  have  an  ()|)poi'tmiity  to  peruse  the 
brief  to  be  tiled  by  counsel  for  the  defendant-in-error  in 
the  Supreme  Court,  before  this  brief  is  printed,  and  as 
we  assume  that  the  contents  of  the  brief  of  said  coun- 
sel will  be  much  the  same  as  the  contents  of  his  brief  be- 
fore the  Circuit  Court  of  Appeals,  we  will  now  take  up 
the  salient  points  of  his  brief  before  the  latter  court  and 
reply  to  the  same : 

We  respectfully  submit  to  this  learned  Court  that  the 
length  of  this  brief  is  caused  by  the  act  of  the  counsel 
for  the  defendant-in-error.  By  act  we  intend  to  imply 
mental — not  physical — act. 

The  learned  counsel  for  the  defen<lant-in-error  in  said 
brief  makes  a  statement  which  is  wholly  unwarranted 
by  the  facts.  He  says,  p.  13  of  said  brief:  "The  only 
offer  on  this  score  is  the  offer  to  prove  the  plaintiff-in- 
error's  physical  disability  at  the  time,"  (and  on  p.  14, 
ibid.)  :  "The  plain  fact  is  of  course  that  one  who  is 
physically  unable  to  attend  a  trial  is  by  no  means  denied 
an  opportunity  to  be  heard  if  he  is  able  to  retain  and 
consult  freely  with  counsel.  The  fnct  that  the  plain- 
tiff-in-error  in  this  case  was  entirely  at  liberty  to  retain 
and  consult  with  counsel  appears  not  only  from  the  fact 
that  he  wrote  long  and  full  letters  to  at  least  one  of  his 
counsel  (fol.  112,  Letter  printed  as  Exhibit  6  for  Iden- 
tification, fols.  305-340),  but  also  from  the  testimony 
in  the  1899  Proceedings  (fol.  -32),  which  shows  that  at 
the  time  in  question  he  was  on  parole  and  at  liberty  to 
go  where  he  pleased  within  large  limits  (fol.  231)." 

Whei'cas  the  deposition  he  cites  proves  beyond  a  per- 


351 


adventure  that  the  plaiiitilT-iii-error  was  at  said  time 
coiitiiied  to  his  bed  with  si)iiial  troiilde.  And,  after  an 
atteni])t  to  walk,  was  forced  to  return  to  his  bed,  and 
stay  there  for  weeks.  We  respectfully  submit  that  the 
counsel  foi-  the  <l(^fendant-in-(M*ror  has  pirbled  and 
twisted  the  dei)osition  of  the  plaintiff-in-erior,  which 
deals  with  the  above  period,  and  conveniently  shifted 
the  facts  forward  for  some  nine  months — from  the 
Spring  of  1899  to  Januarij,  1900 — in  order  to  deceive  the 
learned  Federal  Circuit  Court  of  Appeals,  and  thereby 
buttress  his  utterly  unwarranted  hypothesis,  that  the 
plaintilf-in-error — instead  of  beini>  physically  incapaci- 
tated from  walkiuii'  at  all — to  say  nothing  of  walking 
twelve  miles  in  three  hours — which  the  deposition  proves 
he  did  in — and  steadily — after  January,  1900,  up  to  the 
time  of  his  escape  in  November,  1900 — and  thereby  but- 
tress and  bolster  up  the  counsel  for  the  defendant-in- 
error's  utterly  unwarranted  hypothesis  that  the  plain- 
tiff-in-error  was,  at  the  time  of  the  1899  Proceedings — 
before  a  Commission-In-Lunacv  and  a  Sheriff's  Jury 
held  in  New  York  City — in  vigorous  physical  health, 
walking  all  over  the  countrv  and  meeting  and  consult- 
ing  with  counsel  to  his  heart's  content.  The  following 
excerpt  from  said  1899  Proceedings,  being  the  testimony 
on  the  stand  of  the  other  side's  own  witness,  namely, 
Dr.  Samuel  B.  Lyon,  Medical  Superintendent  of  "Bloom- 
ingdale,"  utterly  disproves  the  aforesaid  allegation  by 
said  learned  counsel  for  defendant-in-error,  for  same 
shows  plaintiff-in-error  confined  to  his  bed  at  the 
time  of  said  1899  Proceedings  and  for  some  three  weeks 
prior  thereto.  The  statement  of  said  learned  coun- 
sel for  defendant-in-error — to  wit — "at  the  time  in 
question  he  was  on  parole  and  at  liberty  to  go  where 
he  pleased  within  large  limits,"  dwindles  down  to  the 
pitiful  fact  that  ])laintiff-in-error — although  at  liberty  on 


352 


parole,  to  iio  where  he  pleased  within  large  limits,  was 
physicdlUi  mcap<icli<it((l  hi/  inahiHty  to  avail  Jiimsclf  of 
said  liberty.  Said  exeerpt  to  wit.  Transcript  of  Rec- 
ord, }).  114,  fol.  1*25,  supra. 

Q.  "When  did  yon  last  see  John  Armstrong-  Chal- 
oner? 

A.  Last  Wednesday  or  Thnrsday,  abont  three  days 
ago. 

Q.  Did  you  see  him  in  regard  to  attending  before  this 
Commission  and  Jnry,  today? 

A.  Yes,  sir;  I  knew  this  case  was  approaching  and  I 
yisited  him  and  asked  him  what  he  wanted  to  do  in  re- 
gard to  it ;  whateyer  he  Ayanted  to  do  I  wanted  to  carry 
ont.  I  asked  him  if  he  wanted  to  be  present  here;  he 
said  he  was  physically  unable  to  be  present  on  account 
of  pain  in  his  spine  *  *  *  (p.  115,  fol.  225).  A  lit- 
tle subsequently  to  that  I  received  a  request  from  him  to 
come  oyer  again. 

Q.  In  what  place? 

A.  To  his  room.  He  did  not  wish  me  to  represent 
him,  but  I  should  come  in  his  place  or  say  that  he  could 
not  come  on  account  of  his  infirmity     *     *     *, 

A.  *  *  *  He  did  not  feel  as  if  he  could  stand  up, 
he  has  kept  his  Ited  foi-  oyer  three  weeks  at  least,  (p. 
115,  fol.  226). 

BY  A  JUROR : 

Q.   Has  he  eyer  nuide  any  attempt  to  escape? 

A.  No,  he  has  no  desire  to  escape — he  has  made  no 
attempt  to  escape.  I  granted  him  the  priyilege  of  all 
the  grounds — 1  gaye  him  the  parole  of  our  grounds  on 
his  honor — he  is  a  yery  honoiable  num,  he  went  out  by 
himself  an  hour  or  so — and  then  he  ceased  to  go  out  be- 
cause he  was  physically  unable." 


353 


\V(*  n's])iMtfnllv  snhinit  thai  \\w  said  record  bears  out 
oiir  alh'iiatloii,  and  u])sets  that  of  tlie  learned  counsel 
for  defendant-in-ci  ror. 

The  latter's  aforesaid  allegation  in  re  plaintiff-in- 
error's  being  entirely  at  liberty  to  "i-(4ain  and  consult 
with  counsel'*  is  as  false  as  the  aforesaid  allegation  pic- 
turing plaintitf-in-error  as  roaming  the  country  within 
birge  limits.  While  the  truth  is  he  was  flat  on  his  back. 
The  same  regarding  the  'iong  and  full  letters,"  as  said 
learned  counsel  for  defendant-in-error  falsely  accuses 
plaintiff-in-error  of  writing.  We  shall  presently  ])rove 
said  charges  against  the  veracity  and  good  faith  of  said 
learned  counsel  for  defendant-in-error  to  the  hilt  in  this 
brief-in-rebuttal.  Also  we  shall  show  that  plaintiff-in- 
error  kept  to  his  parole — -though  a  bogus  parole  given 
under  duress — for  seventeen  months  of  torment.  And 
only  escaped  when  he  found  ihat  no  lawyer  from  New 
York  or  elsewhere  had  the  courage  to  bring  habexis 
corpus  Proceedings. 

V\o  now  come,  anc  respectfully  submit,  to  the  cause  of 
the  length  of  this  Brief.  The  aforesaid  cause  is  many- 
sided. 

First.  ■  When  in  1907  plaintitt-in-error  published  his 
law  book  entitled  "The  Lunacy  Law  of  the  AVorld"  som*^ 
four  hundred  pages  in  length,  treating  of  the  Law  on 
Lunacy  in  each  of  the  forty-eight  States  and  Territories 
of  the  ITnited  States,  as  well  as  those  of  the  Six  Great 
Powers  of  Europe,  to-wit :  Great  Britain,  France,  Italy, 
Russia,  Germany,  and  Austria-Hungary;  six  leading  Law 
Reviews  spoke  in  enccmraging  terms  thereof,  and  even 
went  so  far  as  to  say  that  the  changes  suggested  by 
plaintiff-in-error  should  be  enacted  into  law  by  the  Legis- 
latures of  the  various  States  oj-  Territories  whose  Laws 
on  Lunacv  left  something  to  be  desired.  The  follo\vinj>- 
is  a  list  of  the  aforesaid  Law  Reviews  with  a  few  lines 

(23) 


354 


of  criticisiii  from  ejich — tlic  maiu  bulk  beiiiu'  found  in- 
dexed  later  on  in  this  volume  of  the  Brief: 

The  Noi-thrcLstcni  Rcitoiici-,  The  Ohio  Laic  Bullefln, 
The  OldahoiiKi  Lair  '/aiinial.  The  Lancaster  Lair  lie- 
view,  Law  Notes. 

The  NortJicdstcni  Ixciioricr  says:  "St.  Paul,  Minn., 
July,  1907.  It  is  an  examination  of  the  laws  of  each  of 
the  States  and  Territories,  and  of  the  Six  Great  Powers 
of  Europe,  on  the  subject,  and  is  in  terms  a  very  severe 
arraii»nment  of  most  of  them.  It  iroaJd  (t])pear  that  the 
hi  1(1  nitons  xi/stcni  af/ainst  whicli  (liarles  Readc  iraf/ed 
irar  lias  hi/  no  means  disappeared.  People  may  still  be 
incarcerated  in  Insane  Aslyums  without  notice,  and  with- 
ont  an  opportnniti/  to  he  heard,  either  in  person  or  b\ 
attorney  *  *  *  ]Mr.  Chaloner  holds  a  brief  for  the  ac- 
cused, and  puts  his  case  rcrp  sfroiif/li/,  J)iil.  in  rivir  of  the 
cases  lie  cites,  it  would  he  irn possihie  to  state  the  matter 
too  strontjlji  *  *  *  The  book  should  awaken  pnhlic  in- 
terest in  an  important  matter." 

TJie  Ohio  Lair  HnUciin  says:  "Norwalk,  Oliio,  July 
29,  1907.  Chaloner,  Lunacy  Law  of  the  World.  A  criti- 
cism of  the  practice  of  adjudjiiuii'  persons  incmipetent 
and  de])rivinn-  them  of  their  liberties  iritJiont  due  process 
of  law,  fortified  hi/  decisions  of  the  courts,  is  the  tlieme 
upon  Avhich  the  author  has  dev^eloped  tliis  interestimj  and 
instruct  ire  irorJ:  *  *  *  The  author  makes  it  r'o;K7/^s•//■^/// 
appear  that  there  is  needed  revision  of  these  laws." 

TJie  Ol-lahoma  Lair  Journal  says:  "(hithrie,  Okla- 
homa, September,  1907.  When  the  contents  are  care- 
fully read  and  reflected  upon,  it  is  found  one  of  the  he.st 
and  most  needed  hooks  that  Jias  appeared  for  man//  //ears. 
The  subject  of  Lunacy  Law  in  spite  of  all  the  leuislation 
we  have  had  in  other  departments,  lias  receired  little  at- 


355 


tentiou.  In  fact,  it  is  little  better  tlian  when  (Miarles 
Reade  wrote  his  book  entitled  'Hard  Cash,'  *  *  *  There 
i.s  unicli  in  M  i\  CIkiIohci^'s  hoo],-  I  hat  iihoiild  he  trelV 
studied  hi/  cnrji  laivi/cr  and,  legislator  as  to  what  should 
he  done  to  secare  the  constitutional  rif/hts  of  erert/  one 
alleged  to  he  of  unsound  mind.  The  book  earefullv  goes 
over  the  Law  of  Lunacy  in  the  forty-five  States  and  Ter- 
ritories as  well  as  that  of  the  leadini;-  Nations  of  I'^nrope." 

71)e  Lancaster  Law  Review  says:  "Lancaster,  Pa.,  Sep- 
tember 30,  1907.  To  those  of  us  who  have  been  accus- 
tomed to  look  with  complacency  on  our  I^unacy  Laws, 
reniemberin<>'  how  lunatics  were  thrown  inro  dungeons 
and  chained  and  tortured  but  a  short  time  ago,  this  hook 
hriiigs  hotne  some  startling  truths.  It  shows  clearly 
the  dangers  of  that  class  of  legislation  in  force  in  Eng- 
land and  manj^  of  our  States  (as  our  own  Act  of  April 
20,  1869,  P.  L.,  78),  which  permits  an  alleged  lunatic  to 
be  incarcerated  upon  the  certificate  of  'two  or  more  rep- 
utahle  physicians.' 

The  author  contends  that  in  Lunacy  Proceedings, 
notice  to  the  alleged  lunatic  ought  to  he  ahsolutehj  es- 
sential and  that  the  trial  should  be  by  jury  in  the  pres- 
ence of  the  alleged  lunatic ;  that  any  other  practice  is  a 
violation  of  his  constitutional  rights  and  dangerous,  in 
that  it  might  be  used  by  designing  relatives  for  fraudu- 
lent purposes.  The  importance  of  a  jury  trial  in  such 
cases  has  been  recognized  by  Judge  Brewster  in  Com.  ex 
rel  V.  Kirlxhride,  2  Brewster,  402.  The  writ  of  habeas 
corpus  is  not  a  sufficient  safeguard.  The  suhject  is  an 
important  and  interesting  one,  and  the  hook  shows  ej-- 
tensive  and  careful  research.  It  is  forcefulli/  loritten 
and  carries  conviction.''' 

Law  Notes  says:  "Northport,  New  York,  September, 
1007.     The  e.rhaustiveness  of  his  research  into  the  r/ucs- 


356 


tioii  coin  pels  adniiratio}!,  an  author  who  cau  work 
through  the  Lunacy  Law  from  the  time  of  the  Emperor 
Conrad  down  to  the  present.'' 

\ye  respectfully  submit  that  with  such  a  serried  array 
of  powerful  approval  of  our  view-point,  regardini;  the 
crying  need  for  a  reform  of  the  shameful,  the  scandal- 
ous— the  fiendish  abuses  perpetrated  under  the  name 
of  Lunacy  Law — it  behooved  us  to  search  the  tortuous 
depths  of  the  other  side — regarding  garbling  onr  inten- 
tions, aims  and  utterances — so  profoundly,  so  thorouglily 
and  so  tiiiiiutelij.  that  not  so  much  as  one  stone  in  their 
felonious  edifice  should  be  left  upon  another. 

Another  reason  for  the  lensith  of  this  Brief  is  that 
the  case  of  Chaloiier  against  Sherman  is  the  only  case 
on  record,  we  respectfully  sul)mit,  in  our  experience  in 
Lunacy  Law,  which  covers  all  and  sundry  the  vicious 
spots,  the  crooked,  crafty  and  criminal  crannies,  studi- 
ously exploited  by  lawyers  who  are  known  in  profes- 
sional circles  in  New  York  as  "Lunacy  Lawyers."  By 
which  is  meant  law^'ers  in  general  practice  in  the  metro- 
polis, but  who  are  personalh^  or  through  a  partner  or 
partners  in  their  firms,  financially  and  professionally  in- 
terested in  legislation  at  Albany — in  ^'steering'''  legisla- 
tion at  Albany  so  that  the  Lunacy  Laws  shall  be  as 
outwardly  humane,  just  and  constitutional  as — at  a  cur- 
sory glance — but  cursory  glance  onJi/ — appear  to  be  the 
Lunacy  Laws  of  the  State  of  New  York  of  1896 — while 
in  reality  same  are  the  height — or  rather  the  depth — 
of  infanri/ — the  cloaca  maa-inia — the  public  sewer  of  in- 
justice, wrong,  felonious  craft  and  unconstituiionality. 
The  firm  of  Evarts,  Choate  and  Sheruian's  most  illus- 
trious member,  whose  name  appears  to  this  day  as  coun- 
sel on  the  firm  letter  paper  of  said  firm,  was  at  the  time 
of  plaintiff-in-error's  illegal   incarceration   in   "Bloom- 


357 


iiiiidak'""  a  iiieinber  of  the  lioanl  of  (Jovcrnors  of  that 
Iiistitiitiou.  Therefore  plaiutiff-iii-error  was  opposed  by 
interests  froju  within  and  interests  from  withonl  in  the 
infamy  which  was  practiced  ai»ainst  his  liberty  and  con- 
stitutional rii»hts. 

The  ayaricious  interests  of  the  Chanler  family  hist- 
inii'  after  his  gold  jmf  plaintitt"-in-error  in  "Blooming- 
dale;"  the  ayaricious  interests  of  said  laAv  rirm  of  Eyarts, 
Choate  and  Sherman  kept — through  one  of  its  members, 
the  late  Prescott  Hall  Butler,  the  predecessor  of  Thomas 
T.  Sherman — of  Eyarts,  Choate  and  Sherman — as  Com- 
mittee of  the  person  and  property  of  plain titf-in-error 
— fuJsehj  alleged  "Committee" — Ivept  plaintitf-in-error  in 
"Bloom  ingdale." 

Another  reason  for  the  length  of  this  Brief  is  that 
since  plaintiff-in-error  was  thrown  into  "Bloomingdale" 
he,  strangely  enough — we  respectfully  submit — devel- 
oped rather  unusual  literary  powers  theretofore  utterly 
beyond  his  reach,  so  much  so  that  an  ordinary  letter  with 
any  literary  flavour  was  beyond  him.  So  diligently  has 
plaintitf-in-error  worked  this  aforesaid  literary  vein  dis- 
covered one  year  after  his  aforesaid  incarceration  in 
"Bloomingdale"  that  while  there  he  wrote  several  hun- 
dred sonnets,  many  of  which  have  since  been  published 
in  book  form  and  obtained  high  praise  from  critics  all 
over  the  United  States,  as  well  as  the  "Academy"  of 
London.  In  the  past  ten  years  plaintiff-in-error  has  writ- 
ten a  more  or  less  satirical — but  viridic — history  con- 
cerning what  is  known  as  the  "Four  Hundred"  of  New 
York — or  at  least  the  creme  de  la  creme  thereof — as  rep- 
resented l)y  the  avenues  of  Law,  Finance  and  Society. 

•  7  •, 

This  book  has  received  most  extraordinary  praise  from 
the  three  or  four  papers.  North  and  South,  which  had 
the  courage  to  review  same.  Said  history  is  entitled 
^'Fou.r  Years  Behind  the  Bars  of  'Bl()omingdale\  or  The 


358 


Bankruptcu  of  Iaiic  in  Ncio  York:'  The  fcaid  critii-isins 
are  found  in  e.rtcnso,  or  abbreviated,  in  ax)peudix  to  this 
brief,  a  separate  volume  indexed  as  follows :  To-wit : 
''Criticisms  of  Four  Years  Bchiud  the  Bars  of  'Bloom- 
inydale,'  Bi/  Era)i  R.  (lusternian,  in  Richmond,  Va., 
'Evenituj  Journal,'  "  j).  190-197;  "Criticism  of  Four  Years 
Behind  the  Bars  of  'Bloominc/dale'  from  the  New  York 
"World.'"  p.  198;  ''(^riticism  of  Four  Years  Behind  the 
Bars  of  \R1oomin(/dah\'  from  the  Raleigh,  \.  C,  "News 
and  Ohserrer,"  "  pp.  198-199. 

During  said  ten  years  plaintift'-in-error  has  written 
some  ten  books  in  prose  or  in  verse;  all  of  which — without 
a  solitary  exception — have  received  most  unusual  praise 
from  critics  the  country  through.  No  attempt  has  been 
made  to  sell  said  books  as  yet,  for  the  reason  that  i)lain- 
titf-in-error  lacks  the  means  to  advertise  said  books  until 
he  should  regain  his  large  property.  But  totally  irre- 
spective of  any  pecuniary  remuneration  plaintilT-in-error 
steadily  w^orked  at  his  so  to  speak — new  trade — for  the 
past  ten  years  turning  out — not  actually,  but  on  an  aver- 
age— a  book  a  year,  all  and  sundry  of  which  were  most 
favourably  received.  In  all  of  said  books  plaintitf-in- 
error  1ms  taken  the  stand  that  once  a  man  has  put  his 
hand  to  the  plough  he  should  not  turn  back.  Since  nine- 
teen fourteen  plaintitf-in-error  has  developed  his  literary 
turn  into  pla^^- writing ;  and  written  five  plays — one  in 
prose,  four  in  dramatic  blank  verse.  The  title  of  the 
prose  play  is  "Rohherj/  Under  Laic,  or  the  Battle  of  the 
Millionaires."  This  play  has  made — we  respectfully  sub- 
mit— a  decided  stir  in  newspaper  circles — as  the  fifty 
pages,  more  or  less,  of  newspaper  criticism  thereof  indi- 
cate— said  book — as  all  other  of  plaintiff -in-error's  books 
— is  in  evidence. 

In  conclusion.  Another  reason  for  the  lengtli  of  this 
Brief — and  by  far  the  most  important  conceriiing  this 


359 


learned  Court's  reaeliiiij;  a  decision — is  flic  sfartliiH/  f(u-f 
I  lid  I  the  lennicd  coiniscl  for  (Icfciiddiit-in-crror  has  not 
licsituied  to  stoop  to  the  depths  of  niisstating  the  Record 
— ///  .s'o  far  (IS  ill  him  laij — hij  inissiatimj  same  in  thr  iiiosi 
scandalous  fashion.  This  deplorable  aspect  of  this 
extraordinary  case  is  gone  into  fully  in  plaintitt'-in- 
error's  Brief-in-Kebuttal,  So  we  shall  not  further  dwell 
upon  this  lamentable  proof  of  the  degeneracy  and  degi-a- 
dation  of  the  New  York  Bar  by  the  acts — the  re<l-han»led 
in  fkiijrante  delictn  acts — of  a  lawman*,  who,  we  undei-- 
stand  on  the  highest  authority,  is  (Miairiiian  of  the  In- 
vestigating Committee  of  the  Bar  Association  of  the  City 
of  New  York,  for  the  investigation  of  the  ethical  records 
of  lawj'ers  brought  to  the  notice  of  the  said  Bar  Asso- 
ciation for  disbarment.  We  shall  simply  say  that  an 
erroneous  statement  uuiy  take  up  but  five  lines,  whereas 
the  Truth — to  refute  said  statement — may  require 
scores  of  pages.  To  take  but  two  examples.  First: 
the  learned  counsel  for  defendant-in-error  does  not 
hesitate  to  traduce  the  A^irginia  Proceedings  of 
November  Gth,  1901 — finding  plaintiff-in-error  sane 
and  competent — as  being  "Collusive  and  void" — see 
Chanlcr  v.  ^Sherman,  1(52  F(m1.  Rep.,  19,  supra.  The 
learned  Court  said:  "The  defendant  joins  issue  upon 
the  fact  of  sanity  after  the  New  York  ordiM-s  were  made 
and  also  sets  up  that  the  Virginia  decree  was  olttaiiie;! 
by  collusion  and  is  void."  To  offset  said  false  aspersion 
upon  the  act  of  a  Court  of  a  Sovereign  State  of  the  I'^uited 
States  required  the  insertion  en  bloc  of  ilie  !:>  ])riuted 
pages  of  testimony  of  said  ^licajah  AA'oods  at  the  1908 
deposition  concerning  the  regularity  of  sai<l  Virginia 
Proceedings — said  ^licajah  Woods  at  the  tin)e  of  his 
testimony  being  President  of  the  Virginia  State  Bar 
Association,  and  conceded — -on  the  recoi-d — to  be  an  ex- 
pert by  said  Joseph  II.  Choat<^,  Jr.     .Vlthough  this  was 


360 


not  the  only  reason  siiid  thirteen  i);i<;e>s  of  testiiuony 
were  inserted,  as  is  fully  set  forth  where  same  appear  in 
Brief-in-Kebuttal. 

t^Gcond :  On  pa<ie  3  of  defenchmt-in-error's  ]>rief  ap- 
pears the  following;  monstrous  misstatement.  To- wit :  "At 
the  trial  plaintitt'-in-error  *  *  *  sought  *  *  *  to  intro- 
duce masses  of  evidence  which  were  excluded  as  Jiarinci 
no  tendencij  to  show  *  *  *  that  the  proceedings  were 
tainted  with  fraud." 

AAlien  this  learned  Court  reaches  the  above  in  said 
Brief-in-Rehuttal  the  twenti/-()(](I  pof/es  of  the  Rec- 
ord there  referred  to  —  between  plaint  iff -in-error's 
trial  counsel — in  the  trial  before  the  learned  Judge 
Holt  in  February,  11)12 — and  the  said  learned  judge 
— regarding  his  admission  <»f  evidence — prove  that 
not  once  in  the  whole  course  of  said  three  days'  trial 
did  the  learned  Judge  animadvert  upon  the  value  of  the 
evidence  adduced  b^^  plaintift-in-error — as  said  learned 
counsel  for  defendant-in-error  erroneously^  states  above. 
The  learned  Judge  excluded  plaintitf-in-error's  evidence 
purely  and  solely  on  the  ground  that  the  learned  Judge 
icoiild  not  hear  any  evidence  on  the  subject  u])on  ^^■hich 
evidence  was  excluded.  Here  once  more  it  re(]uired  over 
twenty  solid  pages  of  the  Record  to  refute  a  false  state- 
ment of  onlv  three  lines. 

When  one  considers  that  all  the  hostile  nuiterial  tes- 
timony of  the  three  petitionei-s,  said  Winthrop  Astor 
Chanler,  Lewis  Stuyvesant  Thanler,  and  Arthur  Astor 
Carey,  is  false;  as  well  as  ail  hostile  material  testimony 
of  Doctors  Moses  A.  Starr,  Austin  Flint,  Si-.,  Carlos  F. 
Macdonald,  and  Samuel  R.  l^yon ;  and  when  one  con- 
siders— as  has  been  abundantly  shown — in  the  case  of 
the  learned  counsel  foi-  defendant-in-ei-ror's  erroneous 
statenu'uts  above — that  it  reijuires  twenty  pages  of  truth 
to  overwhelm  a  three-line  lie — the  cause  for  the  extra- 


361 


ordinary,  unprecedented,  nnlieard-of  leniitli  of  this  brief 
is — we  respectfully  submit — not  far  to  seek. 

Finally,  the  hist  and  most  com])ellinii  reason  for  the 
length  of  tills  brief  is  that  plaintiff -iu-error  in  1S9T  ob- 
lijiated  himself  by  the  force  of  what  used  to  be  known 
as  a  ''Hannibal  oath"*  in  1897  to  spend  every  dollar  of 
his  income — not  capital — if  necessary — and  to  spend 
every  year  of  his  life  necessary  to  the  achievement  of 
his  one  aim  and  end  in  life,  to  wit,  the  reformation  of  the 
Lunacy  Laws  throughout  some  40  per  cent  of  the  States 
of  the  Union,  so  that  a  man  or  woman  shall  have  as  fair, 
open  and  above-board  a  trial  if  accused  of  insanity,  as 
now  every  man  and  woman  is  assured  when  accused  of 
an  infamous  crime. 

Before  going  into  the  law  or  the  facts  of  this  extra- 
ordinary case,  it  is  necessary  to  observe,  we  respectfully 
submit,  that  Lord  Byron's  famous  dictum  :  ''Truth  is 
stranger  than  fiction" — is  more  than  sustained  by  the 
lurid  pages  of  the  following  cold  statement  of  law,  as 
practiced  in  the  twentieth  century,  in  the  Metropolis 
of  the  United  States.  We  are  far  from  overstating  the 
case,  we  respectfully  submit,  when  we  venture  to  hazard 
the  remark  that  this  learned  and  experienced  Court 
will  be  nothing  short  of  amazed — not  to  sav  astonished — 
at  the  iniquity  enthroned  in  the  seats  of  the  mighty, 
in  this  age  so  boastful  of  its  su]ierior  civilization,  su- 
perior culture,  superior  knowledge — not  to  say  superior 
virtue.  We  shall  at  once  proceed  to  sustain  the  above 
Indictment. 

In  the  first  place  the  entire  case  of  the  defendant-in- 
error  is  founded — on  the  evidence — upon  a  brazenly  ad- 
mitted crime.  The  entire  foundation  of  the  case  of  the 
defendant-in-error  is — on  the  Record — rooted  in  felony 


*Indexed   Appendix   as    follows:      "Hannibal    Oath    of    plaintiff-in- 
€rror  re  reform  of  Lunacy  Laws,  640-642." 


362 

and — on  the  Record — brazenly  so  admitted  by  him.     In 
a  word  the  Public  Prosecutor  has  been — on  ihc  Record — 
cheated  of  a  group  of  gentlemen  to  send  to  Sing  Sing 
or  Atlanta — to  State  or  Federal  IVnitentiary  by  the — 
for  them — happy  accident  of  the  stepping  in  of  the  Stat- 
ute of  Limitations.     For  instance,  all  of  the  witnesses 
against  the  plaintitf-in-ei-roi-  are,  on  the  Record,  either 
confessed   and  admitted — on  their    own    Record — per- 
jurers, or  so  proved  by  subsequent  events.*    In  a  deposi- 
tion dc  bene  esse  had  by  Winthrop  Astor  (^hauler,  ('hief 
Petitioner  in  the  1897  Lunacy  Proceedings — brother  of 
the   plaintiff-in-error— in     1905— this    gentleman    con- 
fessed— on  the  Record — upon  cross-examination,  that  he 
had  committed  perjury — by  admitting  that  he  had  sworn 
to  falsely  alleged  acts  and  words  put  into  the  mouth  of 
the  plaintiff-in-error  by  himself  and — on  the  Record — 
his  fellow  conspirators  in  the  Petition  to  the  New  York 
Supreme  Court  for  having  the  ])laintiff-in-error  seques- 
tered, and  his  estate  sequestrated  upon — on  the  Record 
— an  utterly  unfounded,  and  malicious,  and  mercenary 
charge  of  insanitv.     Unfortunately,  owing  to  unpropi- 
tious  circumstances,  the  plaintiff-in-error  was — in  spite 
of  almost  Herculean  efforts  u]X)n  his  part — by  circum- 
stances utterly  beyond  his  control — estoi)i)ed  from  bring- 
ing the  matter  to  the  attention  of  the  District  Attorney 
— State  or  Federal — in  New  York  before  the  Statute 
of  Limitations  stepped  in.     In  like  fashion  the  only  two 
other  lay  witnesses*  to  the  falsely  alleged  insanity  of 
the  plaintiff'-in-error  were — upon  the  Record — proved  on 
the  evidence  of  Mr.  Winthrop  Astor  Chanler  to  be  per- 
jurers. 

Coming  now  to  the  medical  experts  in  the  case.     One 
was  such  merely  in  name — being  a  most  distinguished 


*The  two  other  Petitioners— Ex-Lieutenant-Governor  of  New  York, 
Lewis  Stuyvesant  Chanler,  and  Arthur  Astor  Carey. 


363 

practitioner  in  sur.i'ery,  but — on  the  evidence — utterly 
at  sea  when  it  came  to  Psychiatry.  His  brother  Statu- 
torv-Medical-Exaniiner-In-Lunacy,  Dr.  Moses  A.  Starr, 
was  not  lackinii'  in  technical  knowled<ie  of  the  evasive 
Science  of  Lunacy,  but  was — on  the  Record — shockiniily 
so  when  ii  came  to  a  question  of  morality.  This  mem- 
ber of  the  Profession  of  Eseulapius,  in  place  of  assidu- 
ously seeking-  to  alleviate  pain,  care,  anxiety  in  the  hu- 
man race,  did— on  the  Record— his  very  best  to  increase 
the  burden  of  the  same- -and  for  life — in  the  case  of 
the  plaintiff -in-error,  and  the  same  may  be  said  of  Dr. 
Austin  Flint,  Sr.,  and  Carlos  F.  Macdonald. 

We  next  come  to  the  crenie  de  la  creme  of  New  York 
City's  proudest  names.  Here  indeed  the  mind  becomes 
palsied  with  horror  at  the — on  the  Record — spectacle 
of  bloody-minded  hypocrisy  ;  cruel,  relentless,  mercenary 
lust  for  tilthy  lucre ;  Satanic  schemes  for  entrapping  sane 
and  innocent  men  and  women  of  station  and  wealth  in 
order  to  bury  them  alive  in  the  bowels  of  their  modern 
Bastile — masquerading  under  the  name  of  an  Asylum. 
The  leaders  of  Society,  Finance,  Law,  Medicine,  and — 
we  had  almost  said — Religion,  are — on  the  Record — 
found  cheek  by  jowl  and  heads  together,  in  secret  con- 
spiracy against  the  persons  and  property,  of  not  only 
citizens  of  the  "Empire  State,"  but  strangers  within  her 
gates.  The  spectacle — on  the  Record — afforded  by  this 
prostitution  of  fine  minds,  in  their — on  the  Record — 
degraded,  depraved  and  thoroughly  degenerate  mad  rush 
for  ill-gotten  Avealth,  is  no  more  saddening  than  appall- 
ing, when  one  pauses  for  a  moment  to  weigh  its  import 
as  a  sign  of  the  alleged  civilization  of  the  present  day, 
and  whither  and  to  what  ends  said  alleged  civilization 
tends. 

Finally,  let  us  respectfully  glance  at  the  Bench.  This 
mightv  engine — which  comes  nearer  than  even  the  Pul- 


364 


pit  to  r-epreseiitin<;  the  Supreme  Being  at  work  amidst 
the  haunts  and  amidst  the  turmoil  of  the  passions  of 
men — is — we  regret  to  respectfully  observe — proved — 
on  the  Record — in  but  too  jnany  instances  metamor- 
phosed into  (I  luachine  for  (ichicving  a  criminal  purpose 
— we  do  not  say  wittingly.  In  place  of  being  the  Holder 
of  the  Scales  of  Justice  between  Vice  and  Virtue,  the 
Court — OH  the  Record — api)arently — we  do  not  say  witt- 
ingly— sides  with  Vice  against  Virtue,  and  becomes — 
on  the  Record — indisputably  and  unequivocally — we  do 
not  say  wittingly — the  champion  of  a  Lie,  as  opposed  to 
Truth.  This  side  of  this  sinister  and  repellant  law  suit, 
being  no  less  painful  for  us  as  an  officer  of  the  Court 
to  state,  than  for  this  exalted  Court  to  listen  to,  shall 
be  touched  upon  no  more. 

Turning  now  to  the — so  to  speak — subsidiary  parties 
and — on  the  Record — allied  members,  in  this — on  the 
i^ecortZ— spectacular  conspiracy — staged  upon  the  au- 
gust boards  of  a  Court  of  Law.  The  havoc  wrought  by 
the — on  the  Record — corrupting  dollar,  and  the  even 
more  corrupting  pursuit  of  the  same,  is  second — if  sec- 
ond— only  to  that  following  in  the  wake  of  the — on  the 
Record — principal  plotters  in  this  modern  tragedy. 
First  we  have  alienists,  whose  l)usiness — on  the  Record 
— is  one  of  pronouncing  sane  men  and  sane  women  in- 
sane for  a  handsome  honorarium ,  in  the  teeth  of  the 
dictates  of  conscience,  and  the  indications  of  the  facts 
in  the  case  of  the  falsely  alleged  incompetents — to  say 
nothing  of  the  dictates  of  the  noble  and  philanthropic 
profession  of  Medicine.  Astounding — almost  incredible 
— as  it  sounds  to  the  ears  of  those  unfamiliar  with  the 
seamy  side  of  life  in  high  places — in  wealthy  and  popu- 
lous cities  in  the  TTnited  States — there  exists  in  such 
cities  today — and  their  number  is  steadily  on  the  in- 
crease— a  Secret  Society  more  pernicious    and    deadly 


365 


than  any  secret  society  the  snn  lias  ever  shone  on — not 
even  exceptinii'  the  Thni»s  of  India,  lliese  hiumni  licdd- 
Jiimterx  <irc  as  devoid  of  tJie  rcri/  first  instincts  of  liu- 
manity  as  Jicad -hunters  front  the  Malay  Archipelayo — 
as  a  Dyak  from  Borneo  or  Celibes — out  for  heads,  and 
heads  only.  These  depraved  and  abandoned  wretches 
have  the  outward  bearing  and  manners  of  i>entlenien 
of  the  highest  lefinement,  and  deep  learning — to  say 
nothing-  of  an  air  of  false  geniality  and  cordiality,  pro- 
foundly calculated  to  lure  the  innocent  and  unsuspect- 
ing victim  to  his  or  her  undoing.  While  in  reality  no 
murderer  who  ever  cut  his  victim's  throat  at  dead  of 
night  and  from  ear  to  ear  was  ever  freer  from  anything 
in  the  least  degree  resend)ling  pity,  sympathy,  or  even 
the  ordinary  conventional  makeshifts  for  conscientious 
scruples.  These  felons  in  fact — hut  not  in  laic — today 
flourish,  for  the  reason  that  the  laics  in  forty  per  cent 
of  the  States  of  the  United  States  are  made  in  their 
favor,  and  in  order  that  they  may  ply  their  trade  un- 
detected and  undisturbed  by  the  knock  of  the  detective 
or  the  police  officer.  This  does  not  mean  that  the  makers 
of  the  said  abominable,  unconstitutional  and  illegal  laws 
are  individually  guilty  in  all  cases ;  because  said  laws 
are  so  wrapped  up  in  specious  phrases,  and  apparently 
— but  apparently  only — wholesome  safeguards,  looking 
towards  safeguarding  the  liberties  of  the  individual — 
that  the  lay  mind  is  at  once — ^and  almost  invariably — 
baffled  by  the  chicanery  of  the  legal  mind,  or  minds, 
craftily  drafting  said  traps  and  pitfalls  masquerading 
as  law. 

Next  Ave  have  lawyers  who — on  the  Record — act  as 
go-betweens  between  the  alienists  and  their  victims.  By 
which  is  meant  laAAwers  learned  in  the  dark  and  mys- 
terious Laws  of  Lunacy;  and  interested — personally  and 
professionally — in  keeping  said  laws  in  precisely  that 


366 


condition.  These  men  are  frequently  personally  and 
financially  interested  in  some  one  or  more  Private  In- 
sane Asvlum,  as  members  of  the  so-called  "Board  of 
Governors,"  or  whatever  the  liis^h-sonnding  and  decep- 
tive title  may  be.  Their  business  is  to  see  to  it  that  the 
laws  made  at  Albany  and  elsewhere  are  made  in  their 
favor,  and  emphatically  against  that  of  the  male  or 
female  citizen  of  wealth — sometimes  without  wealth — 
when  an  even  more  sinister  motive  than  avarice  or 
malice  actuates  the  gentlemen  who  control  Lunacy  Leg- 
islation in  some  forty  per  cent  of  the  States  of  the 
L^nion, 

Lastly  we  have  the  Professional  Heads  of  Private  In- 
sane Asylums — men  so  scorchingly  handled  by  Charles 
Reade  in  his  epoch-making  novel  "Hard  Cash,''  which 
revolutionized  the  treatment  of  the  insane  in  Great 
Britain  fifty  years  ago — the  powerful  preface  of  which 
is  found  on  page  137  at  the  rear  of  plaintiff-in-error's 
dramatic  work  entitled  "Robbery  Under  Law"  in  evi- 
dence with  the  rest  of  the  literary  work  of  plaintiff-in- 
ci-ror  during  the  past  ten  years — that  we  shall  not  at- 
tempt the  task. 

Of  which  we  now  give  a  five-line  extract — p.  143, 
"Robbery  I"^nder  Law" — as  follows:  ^'The  fact  would 
appear  to  he  that  under  existincj  arrangements  any  Eng- 
lish man  or  woman  may,  toithout  much  difficulty,  be  in- 
carcerated in  a  Private  Lunatic  Asylum,  when  not  de- 
prived of  reason.  If  actually  deprived  of  reason  ivhen 
first  confined,  patients  may  he  retained  in  duress,  tvhen 
their  cure  is  perfected,  and  they  ought  to  he  released. 

Charles  Reade. 
Magdelen  College,  Oxford, 
October  23,  1863." 

As  a  mend)er  of  the  legal  profession,  we  shrink  from 


367 


lifting-  the  veil  liaiiiiing  over  this  sombre  and  repellant 
case.  Bnt  the  cause  in  which  we  luive  been  embarked  for 
twenty  years,  (h'mands  a  reh'ntless  and  frank  exposure  of 
wrong-doinii  bv  wliomever  done. 

In  chjsing  this  section,  one  other  point  should  be 
touched  upon,  which  ])oint  will  go  far  towards  em- 
phasizing the  dire  need  for  plaintiff-in-error  to  leave 
no  stone  unturned  in  putting  this  learned  Court  iu  pos- 
session of  the  essential  facts,  to-wif.  Should  this  learned 
Court  reverse  the  opinions — in  Windsor  v.  McVeigJi, 
Simon  v.  Crafty  and  Uniicd  States  afjaiust  Throckmor- 
ton, all  United  States  Snpreme  Conrt  rases — holding 
that  notice  and  opportunity  to  appear  and  be  heard  are 
necessary  for  a  Court  to  obtain  jurisdiction  over  a  ])arty 
or  a  party's  property,  and  holding  tliat  a  deci-ion  may 
be  set  aside  where  it  can  be  shown  that  the  defendant 
did  not  have  his  day  in  Court — where  facts  were  Avith- 
held  from  the  Court,  where  the  defendant's  whole  case 
was  not  heard  in  conse<iuence,  where  the  defendant  was 
not  notified  of  the  Proceedings  in  Court,  or  was  kept  away 
from  Court,  and  where,  consequently,  there  was  no  real 
trial — should  this  learned  Court  reverse  the  said  three 
opinions — all  of  which  are  cited  practically  ///  e.rlenso 
further  on  in  this  Brief — then,  in  that  erent,  plaintiff 
vill  receire  a  sentence  practicalJi/  of  life  deprirnfion 
of  his  propertji  and  cnrtailmcirt  of  Jiis  liberties,  to-n-it, 
conpnenient  to  Virr/inia  and  North  Carolina,  from  tlils 
learned,  Court  for  the  following  reason.  Nothing,  we 
respectfully  submit,  should  or  could  induce  plaintii'f-in- 
error  to  again  submit  to  the  humiliation  of  again  having 
the  question  of  his  sanity  entered  into.  We  respectfully 
submit  that  not  only  reasons  of  self-respect  prohibit  such 
a  course,  but  also  plaintiff-in-error's  duty  to  his  legatees 
the  Universities  of  Virginia  and  North  Carolina,  to  ^^  liom 
years  ago  he  deeded  the  corpus  of  his  entire  estate  in  fee 


368 


— valued  at  a  million  or  more  dollars.  Said  deed,  we 
respectfully  submit,  is  protected  for  all  time  bj  the  Vir- 
ginia decision  of  November  (>,  1901,  declaring  plaintiff- 
in-error  sane  and  competent — See  102  Fed.  Eep.,  19, 
supra:  "Tlie  ConMitufioii  of  the  I'nifvd  >>tates  vests  in 
its  judicial  departiuciit  jurisdiction  over  controversies 
hctirerii  citizens  of  different  States.  The  Petiiioner  as 
a  citizen  of  the  Htate  of  Virginia  in  hringinf/  his  said 
suit  in  the  Circuit  Court^  of  the  United  ^^tates,  ivas  avail- 
ing himself  of  a  rif/Jit  founded  upon  tins  constitutional 
provision.  And  lie  came  into  that  Court  with  a  decree 
of  the  Court  of  the  State  of  which  he  was  a  citizen,  de- 
clarinfi  his  sanitg.  We  cannot  disregard  that  decree" 
supported  by  the  North  Carolina  decision  of  1905,  recooj- 
nizing-  the  validity  of  said  Virginia  decree  and  permitting: 
plaintift'-in-error  to  bring  suit  aganst  defendant-in-error 
in  said  State  in  John  Armstrong  Chaloner  v.  The  United 
Industrial  Com  pang — which  suit  plaintiff-in-error  w(m, 
i)ifra. 

Furthermore,  were  plaintitf-in-error  ill  advised  enough 
to  permit  the  question  of  his  sanity  to  be  once  more  re- 
opened, that  act  would  instantly  jeopardize  Ihe  afore- 
said Virginia  decree,  now  fifteen  years  old,  apd  under 
whose  aegis  plaintiff-in-error  has  been  enabled  to  bring 
suit  in  the  entire  line  of  Federal  Courts  of  New  Vork 
up  to  the  Supreme  Court  of  the  United  States. 

Lunacy  Proceedings,  we  respectfully  submit  are  of 
all  Court  proceedings  the  most  uncertain  and  doubtful. 
For  Lunacy  Proceedings  depend  for  their  decision  upon 
the  mere  opinion  of  Court,  Commission,  or  Jui'y,  as  the 
case  may  be.  It  is  not  as  in  ordinary  cases  where  specific 
acts  are  known  to  have  been  committed,  specific  state- 
ments made  in  the  well  known  and  fully  charted  realm 
of  business,  or  other  normal  affairs  of  life — whether  rep- 


*Since  been  changed  to  the  District  Court. 


369 


utablc  or  (lisir])iital)l(' — wlietlicr  iiiiioccnl  or  criiiiinal. 
Wliereas  in  Lunacy  Proceediiiiis  the  matter  is  startliiii»ly 
(litferciit.  Here  we  enter  a  realm  in  wliicli  Court  and 
Jury  are  wholly  at  sea — wholly  inexperienced  fi-om  lack 
of  familiarity  with  insane  subjects  and  their  ways — as 
well  as  the  Literatui'e  on  Insanity  and  its  theories. 
Therefore  Court  and  Jury  are  far  from  feelini*  that  con- 
fidence in  reuderiuo-  a  decision  which  follows  Court  and 
Jury,  in  the  aforesaid  normal  a  If  airs  of  life.  Therefore, 
the  opinions  of  hostile  experts  in  insanity  may  entirely 
sway  both  Court  and  Jury  in  the  very  best  of  faith  upon 
the  part  of  Court  and  Jury — but  far — very  far—  from  the 
best  of  faith  upon  the  ])art  of  these  knit;hts  of  the  post — 
these  ^Fedical  men — ^who  liain  their  liyino-  by  false-sw^ear- 
ing- — as  this  Brief  will  amply  proye  has  been  the  case 
wdth  eyery  solitary  JNIedical  man  who  has  testified  against 
the  sanity  and  competency  of  plaintiff -in-error.  There- 
fore in  the  teeth  of  the  long  chain  of  unbroken  eyiflence 
of  sanity  of  plaintiff-in-error  and  of  his  competency, 
stretching  oyer  a  period  of  fifty  years,  from  his  child- 
hood up,  plaiutitt'-iu-error  might  possibly — we  do  not 
say  probably — but  might  possibly  be  found  today  insane 
and  incompetent  by  a  New  York  Judge  and  New  York 
jury,  who  believed  what  New  York  experts  in  Lunacy 
haye  audaciously — and  falsely  as  audaciously — brazenly 
and  feloniously  sworn  to,  against  the  good  name  and 
fame  of  plaintiff-in-error. 

This  world  has  l»een  well  described  upon  one  occa- 
sion as  a  "Vale  of  Tears."  Such  being  the  case  tragedies 
innocently  occur.  No  greater  tragedy  can  l)e  imagined 
than  a  miscarriage  of  justice.  But  when  the  miscarriage 
of  justice  is  discovered  to  be  a  skilfully  engineered 
scheme  for  the  financial  betterment  of  the  conspirators 
and  their  legal  advisers  in  defiance  of  Law — in  defiance 
of  Equity — and  <ihnre  <iU — in  defiance  of  the  facts  and 

(24) 


370 


the  Truth — it  becomes  no  loiii^ei-  an  liiiioeeut  niisoar- 
rijiite  of  Justice,  but  a  crimimil  luiscarviage — the  result 
of  criiuiiuil  malpractice  u])oti  the  part  of  learned  but 
un])rincipled  counsel  working  throuii,h  equally  unscrupu- 
h)us  clients.  T17/ch  if  is  srcn  Unit  tJic  (^oini  Ikis  been 
deceived  (uid  lird  to  in  tlic  most  sanidalous  and  hrazen 
fasJiion,  when  if  is  seen  fJiaf  flienf  and  counsel  have  not 
hesitated  to  turn  friifJi  into  a  lie  on  flic  sli(/Jtt<'sf  oppor- 
tunity, and — hefireen  fJiein — ,so  fhroiv  dust  into  the  eyes 
of  a  long  line  of  Courts — bofJi  i^fate  and  Federal — for  a 
lony  term  of  years — nearly  tirentif  j/cars — that  a  lie  has 
been  enabled  for  fnynty  ye(trs  to  tr<nnple  upon  the 
Truth — and  advance  to  the  very  portals  of  the  Supreme 
Court  of  the  United  States — i)i  all  the  pomp,  panoply 
and  circumstance  of  Jnstice  herself — n-Jien  this  startliny- 
ly  malodorous  state  of  affairs  is  jirasi)e(l  l)y  this  learned 
and  uprii»ht  Court — we  resi)ectfully  submit  that  this 
learned  and  u])rii»ht  Court  will  be  inclined  to  raise  its 
hands  to  Heaven  and  murmur   O  temporal  O  mores! 

The  above  criminal  charges  have  been  made  bv  us  for 
nearly  twenty  years.  We  have  made  no  secret  thereof. 
What  do  the  other  side  do?  Do  they  bring-  criminal  pro- 
ceedings against' us  in  the  States  of  Virginia  and  North 
Carolina,  where  the  Courts,  years  ago,  found  the  plain- 
tift'-in-error  sane  and  competent — do  they  sue  for  Crimi- 
nal libel  on  account  of  the  words  both  printed  and 
s])oken  by  the  ])laintiff-in-error — spoken  in  public 
s])eeches — against  the  other  side?  Far  from  it.  The 
other  side  replies  to  said  criminal  charye  by  confession 
and  avoidance!  Hear  them — page  eleven  of  defendant- 
in-error's  brief,  to  wit:  "An  examination  of  the  offers  of 
evidence  made  by  the  plaintiff-in-error,  the  questions 
asked  and  excluded,  and,  indeed,  of  the  excluded  evi- 
dence itself  as  it  appears  in  the  de])osition  which  were 
marked    foi-   identification,   will    show   that   the  alleged 


371 


fraud  coiiiphiiiKMl  of  consisted  in  the  Jiiving  of  testimony, 
alleged  to  be  false,  in  the  affidavits  upon  wliicli  the  com- 
mitment was  liad,  in  ISIH,  and  in  the  evidence  upon 
which  the  ])h\intift"  was  adjndiicd  incompetent  in  1899. 
The  allej»ed  c()ns])ii'acy  of  the  rehitives  of  the  plaintitf- 
in-eiToi-  to  deceive  the  Court  by  such  ])erjury  into  de- 
cidinji  as  it  did  deci(h^  ^>uch  fraud,  however,  if  proved, 
is  no  basis  for  a  collateral  attack  upon  an  adjudication. 
The  question  whether  the  testimoiiy,  given  in  sui)port  of 
one  side  of  the  case,  is  or  not  true  is  one  of  the  ques- 
tions necessarily  adjudged  in  every  litigation.  In  the 
case  at  bar  the  question  whether  the  alleged  perjurious 
testimony  was  true  was  necessarily  adjudged  by  the  Su- 
preme Court  of  the  State  of  New  York  in  finding  the 
plaintitf-in-error  incompetent.  This  Court  could  not 
determine  whether  or  not  the  testimony  in  question  was 
perjured  without  trying  over  again  the  very  same  issue 
which  the  New  York  Supreme  Court  decided  when  it 
made  the  order  complained  of.  In  accordance  with  these 
principles  it  is  well  settled  that  the  fact  that  a  judgment 
is  procured  by  false  testimony  does  not  open  it  to  col- 
lateral attack." 

In  closing  this  painful  exposition  of  the  state  of  morals 
and  honesty  prevailing  in  the  Metropolis  of  the  United 
States  at  the  opening  of  the  twentieth  century  we  need 
scarcelv  sav  that  we  are  fullv  aware  of  the  unusualness 
of  our  strictures. 

But  we  have  submitted  patiently  and  silently  for  twen- 
ty years  to  extortion,  insult  and  injury;  and  we  do  not 
propose  to  pursue  a  course  which  has  brought  us  noth- 
ing but  disaster  piled  upon  disaster — any  longer.  Silence 
has  been  our  ruin.     Speaking  out  can  do  no  worse. 

We  respecffitJ]}/  suhmit  to  this  learned  and  upright 
Court  that  because  men  are  irealthij  it  is — to  say  the 
least — fallacious  to  assume  ihat  they  can  do  no  wrong. 


37 


o 


Wc  respect f III] u  submit  to  this  learned  and  upright 
Court  til  at  because  men  are  leaders  in  Society,  in  Fi- 
nance and  in  Law  it  is — to  sav  the  least — fallacious  to 
assume  that  they  can  do  no  wrong.  Lastly  ive  respect- 
fully submit  to  this  learned  and  upright  Court  that  be- 
cause a  man  or  group  of  tnen  has  or  have— never  been 
found  out — it  is — to  say  the  least — fallacious  to  assume 
that  said  man  or  group  of  men — can  never  be  found  out. 
Ex-Jiulj>e  R.  T.  W.  Duke — the  talented  and  un- 
tirinii  eross-exaniiner  of  tlie  plaintitt'-in-error  dnrino^ 
— so  far  as  his  professional  experience,  at  least,  is  con- 
cerned— one  of  the  lonj»est — if  not  the  longest  cross-ex- 
aminations of  a  witness  on  record — extending  over  some 
two  weeks  of  time  and  occupying  some  five  hundred 
pages  of  typed  matter — again  and  again  assaulted  the 
plaintiff-in-error's  position,  in  criticising  men  of  the  na- 
tional prominence  of  the  "Board  of  Governors"  of 
"Bloomingdale"  and  their — so  to  speak — allied  lawyers, 
alienists,  and  citizens  of  high  renown.  But  all  to  no 
purpose — as  the  pages  from  said  cross-examination  ap- 
pendix to  this  Brief  conclusively  prove.  When  a  man's 
social,  political,  legal  or  financial  position  precludes  just 
criticism  of  said  man — and  any  injured  party  so  criti- 
cising him  is  loudly — blatantly  accused  of  suffering  un- 
der a  "^delusion  of  grandeur"' — as  the  high-sounding 
medical  phrase  of  the  day  has  it — then — we  respectfully 
submit  to  this  learned,  and  honorable  Court — we  arc 
confronting  a  most  deplorable  condition  of  affairs. 

In  opening  his  statement  in  his  brief  to  the  United 
States  Circuit  Court  of  x\ppeals  for  the  Second  Circuit 
the  learned  counsel  for  defendant-in-error  says,  p.  1 : 

"The  relief  demanded  in  the  action,  as  in  all  actions 
for  conversion,  js  not  a  return  of  the  plaintiff-in-error's 
property  to  him,  but  a  judgment  for  damages,  which 
would  necessarily  be  measured  by  the  value  of  the  prop- 


373 


ei'tv  at  tlic  time  of  the  aliened  eonversion.  The  action 
haviii.n  heeii  bej^uii  in  1!K)4,  and  the  allej^'ed  conversion 
haviuii,  oi'  coni'se,  taken  place  at  a  still  earlier  date, 
the  recovery  soiij;lit  has  no  relation  to  the  property  now 
in  the  com mitfce's  hands,  and  a  judgment  in  favor  of 
the  plaintitf  would  rest  defendant,  personally",  with  title 
to  the  property  in  hand  at  the  time  of  the  alleged  con- 
version, at  the  same  time  charging  him  with  damages 
which  would  probably  be  much  more  or  much  less  than 
the  property's  present  value.  The  action  can  have  no 
direct  effect  upon  the  very  much  larger  amount  of  prop- 
erty which  has  come  into  the  committee's  hands  since  it 
was  commenced." 

77//s  claim,  we  respectfiilh/  submit,  is  set  forth  in  an 
effort  to  confuse  the  Court. 

It  should  make  no  difference  to  the  Court  what  jnay 
result  with  reference  to  the  property  which  has  come 
into  the  ( 'ommittee's  hands  since  the  present  action  was 
begun.  The  question  for  the  Court  to  determine  is 
whether  the  present  action  is  maintainable.  If  this  ac- 
tion is  decided  in  plaintiff-in-error's  favor,  it  is  true  that 
it  will  result  in  a  judgment  for  dauiages  against  said 
Sherman,  and  that  the  amount  of  those  damages  will 
be  determined  by  the  value  of  the  property  which  came 
into  his  possession  prior  to  the  institution  of  this  suit, 
and  therefore  the  immediate  effect  of  plaintiff-in-error's 
winning  the  case  would  not  be  of  broader  scope  than 
the  property  so  involved.  Nevertheless,  if  plaintiff-in- 
error  wins  the  present  case,  plaintiff-in-error's  right  to 
win  a  case  thereafter  to  be  instituted,  which  will  com- 
prehend, witliin  its  scope  all  the  property  which  has  come 
into  the  possessio7i  of  said  Sherman  since  the  institution 
of  the  present  case,  will  also  be  established,  for  the  rea- 
son that  said  Sherman's  alleged  legal  status  as  "Com- 
mittee" of  plaintiff-in-error's  estate  will   be  destroyed 


374 


by  the  decision  of  the  Court  in  plaintiff-in-error's  favor 
in  the  present  snit. 

Upon  plaintitf-in-error's  winning  the  present  case  of 
Chaloner  v.  Sherman,  said  Sherman  would  be  imme- 
diately thrown  into  the  position  of  a  trustee,  under  a 
^^constructive  trust/'  or  a  trustee  e./"  nialaficio  and  a  suit 
in  equity  would  he  maintuinahlc  against  him,  ive  re- 
spectfulljj  submit,  in  which  he  would  he  required  to  ac- 
count for  everything  that  has  come  into  his  possession 
in  his  alleged  capacity  of  "Committee/'  and  he  Avould 
be  required  to  make  a  full  and  complete  delivery  of  the 
same  to  plaintiff-in-erroi*.  See  Pomeroy's  Equity  Juris- 
prudence, Volume  3,  Section  1044,  second,  constructive 
trusts,  which  reads  as  follows : 

"Constructive  trusts  include  all  those  instances 
in  which  a  trust  is  raised  by  the  doctrine  of 
equity  for  the  purpose  of  working  out  justice  in 
the  most  efficient  manner,  where  there  is  no  in- 
tention of  the  parties  to  create  such  a  relation,  and 
in  most  cases  contrary  to  the  inteyiiion  of  the  one 
holding  the  legal  title,  and  where  there  is  no  ex- 
press or  implied,  written  or  verhal  declaration  of 
the  trust." 

Again,  in  Section  1045  of  the  same  work  we  find  the 
following : 

"The  specific  instances  in  which  equity  im- 
presses a  constructive  trust,  are  numberless — as 
numberless  as  the  modes  by  which  ])roperty  may 
be  obtained,  through  bad  faith  and  unconscien- 
tious  acts."' 


37? 


o 


AiiJiiii,  ill  Section  1047  of  tlic  same  work,  the  follow 


inji 


"Jiy  the  well  settled  doctrine  of  e(iiiity,  a  con- 
sti'uctixc  tnisl  arises  whenever  one  party  has  ol)- 
tained  inonev  which  does  not  e(iuitahly  belonji"  to 
him,  and  which  he  cannot  in  ^ood  consciem  (^  re- 
tain, or  withhold  from  another  wlio  is  heneticially 
entitled  to  it;  as  for  example,  when  money  has 
been  paid  by  accident,  mistake  (►f  fact,  or  frand, 
or  has  been  ac<inired  throiiiih  a  breach  of  trust, 
or  violation  of  fiduciary  duty,  and  tiie  like.  It 
is  true  tliat  the  beneticial  owner  can  often  re- 
cover the  money  due  to  him  by  a  le.iial  action 
upon  an  implied  assumpsit;  but  in  many  in- 
stances a  resort  to  the  ecpiitable  jurisdiction  is 
proper  (iiid  rrcii   iiccc.s.sdrjf." 

I  iidcr  the  forcf/oiiif/  (iiiHtorifj/,  dflcr  trliuiiin/  CIkiIoiki' 
against  Shcnnaii,  phiiiitiff-iii-crror  irill  hare  onli/  to 
choose  ichethcr  he  irill  proceed  at  lair  or  in  ('(/iiitij  to 
recover  ererj/fJiiiu/  in  .said  SJiei'iiiairs  hands  or  nnder 
his  coirtrot,  rc'-eircd  hj/  hint  after  the  present  snit  iras 
brought . 

Therefore,  ire  sai/  again,  that  the  teamed  eonnsel  for 
defendant-iii-error's  said  claim  is  made  parelg  for  the 
purpose  of  misleading  and  confusing  the  Court.  The 
Court,  we  ri^spectfully  submit,  has  only  to  decide  what 
is  before  it,  and  leave  those  property  rijiiits  which  are 
not  directly  involved  in  the  present  cause  to  be  taken 
care  of  ///  appropriate  sul)sequeiit  proceediiu/s.  In  pass- 
iiiji',  it  should  be  noted  that  the  recovery  in  the  case  of 
Chaloner  v.  i^heriiiaii  irill,  ueeording  to  the  ireight  of 
authoril I/,  In'  measured  hi/  tiie  hii/liest  raliie  of  the  prop- 
erfg  Jietireen  tlie  date  of  conversion  and  the  date  of 
trial,  38  Cye.,  2{YM\;  not  "the  value  of  the  property  at 


37G 


the  time  of  tlie  alleged  conversion,"'  as  stated  by  the 
learned  counsel  for  defendant-in-error  in  said  claim. 

Continninu;-  his  statement  in  his  Brief  to  the  United 
States  Circuit  Court  of  xVppeals  for  the  Second  Circuit, 
the  defendant-in-error  says,  page  2 :  "In  1897,  by  an 
order  of  the  Supreme  Court  of  the  State  of  New  York, 
dated  March  10th,  18!)7  (Transcript  of  Record,  p.  113, 
fol.  222-223 1  the  plaintiff -in-error  was  committed  to 
Bloomingdale  Asylum." 

An  interesting  side-light  is  thrown  upon  the  afore- 
said proceedings  when  it  is  borne  in  mind  by  this  learned 
Court  that  said  proceedings  were  utterly  irregular,  il- 
legal, null,  void  and  of  no  effect,  on  the  strength  of  the 
rulings  of  this  learned  Court  in  Windsor  v.  McVeigh,  dis- 
cussed at  length,  infra,  93  U.  S.,  where  the  Court  said 
infra.  Chief  Justice  Waite  concurring — pp.  277-8 — 'Tn- 
til  notice  is  given,  the  Court  has  no  jurisdiction  in  any 
case  to  proceed  to  judgment,  whatever  its  authority  may 
be,  by  the  law  of  its  organization,  over  the  subject  mat- 
ter." And  again  in  Simon  v.  Craft,  182  TJ.  S.,  discussed 
at  length  infra,  this  learned  Court  said,  in  the  opinion 
written  by  ^Ir.  Chief  Justice  White:  ''The  essential  ele- 
ments of  due  process  of  law  are  notice  and  opportunity 
to  defend."  For  the  Commitment  Proceedings  show  (p. 
113,  fols.  222-223)  that  the  plaintiff-in-error  received  no 
notice  whatever  of  the  said  proceedings — ^Ir.  Justice 
Henry  A.  Gildersleeve,  of  the  New  York  Supreme  Court, 
who  signed  the  Commitment  Papers,  dispensing  with 
both  personal  service  and  substituted  service.  Further- 
more. The  deceit  and  deception  which  form  the  founda- 
tion of  the  defendant-in-error's  case — based  as  it  is  from 
its  very  birth  upon  perjury  and  fraud — lu'azenly  admit- 
ted by  the  counsel  for  the  defendant-in-error  in  as  hard- 
ened an  example  of  confession  and  avoidance  as  it  has 


377 


been  our  pleasure  to  meet  since  we  were  admitted  to  the 
New  Yolk  Bar  in  1885 — find  an  example  in  tlie  above 
paraiira])!)  in  tlie  words:  ''])loomini;dale  Asylum." 
"Bloomin!j,(lale"  Asylum  is  an  institution  unknown  to 
the  law.  The  real  name  of  said  institution  bein^'  "The 
Society  of  the  New  York  Hospital"  with  Hospital  and 
offices  on  15th  Street,  just  West  of  Fifth  Avenue — or 
Avere  the  last  time  we  saw  same  some  twentv  vears  a^o 
or  so.  On  line  150  of  said  Commitment  Papers  (p.  109, 
fol.  211 )  in  said  Commitment  Proceedings  of  Aiarch  10th, 
]897,  appear  the  following  words:  "It  is  essential  that 
the  official  title  of  the  institution  (to  which  an  alleged 
lunatic  is  committed)  should  be  correctly  inserted," 
which  it  is  not  in  said  Commitment  papers,  as  it  again 
is  not  by  the  counsel  for  the  defendant-in-error  in  his 
aforesaid  statement. 

Continuing,  the  defendant-in-error  says,  i)age  2:  ''In 
1899  while  he  was  in  Bloomingdale,  Proceedings  were 
brought  by  his  relatives  to  secure  an  adjudication  that 
the  plaintitl'-in-error  -  was  incompetent  and  to  procure 
the  appointment  of  a  committee.  These  Proceedings, 
the  record  in  which  was  offered  and  received  in  evidence 
(pp.  0()-143,  fols.  126-285)  were  regularly  conducted  and 
resulted  in  the  order  already  referred  to  adjudging  the 
incompetency." . 

As  "regularly  conducted" — it  might  be  added — as  pro- 
ceedings which  are  utterly  irregular,  illegal,  null,  void 
and.  of  no  effect  for  lack  of  opportunity  to  appear  and 
be  heard — on  the  strength  of  WiuiUor  v.  McVcif/li,  and 
Simon  V.  Craft,  i^upra — may  or  can  crcr  be:  "regularly 
conducted." 

Concerning  lack  of  opportunity  to  appear  and  be  heard, 
this  learned  Court  said  in  i^imon  v.  Craft,  sHpra:  "The 
essential  elements  of  due  process  of  law  are  notice  and 
opportunity  to  defend."    And  in  Windsor  v.  McVeigh,  93 


378 


U.  S.  supra,  this  learned  (\nirt  said:  ''Until  notice  is 
giyen,  tlie  (Ntiirt  lias  no  jni'is<liction  in  any  case  to  pro- 
ceed to  jndj2,iiient,  wiiatever  its  antliority  may  l)e,  by  the 
purpose  of  atfordin_i»-  the  party  an  (i])portunity  of  being- 
heard  ui)on  the  claim  or  the  charges  made.  It  is  a  sum- 
mons to  hilt!  to  appear  and  to  s])eak,  if  he  has  anything 
to  say,  why  judgment  sought  should  not  be  rendered.  A 
(JciiidI  to  (I  /xirti/  of  tlic  hciicpt  of  a  notice  inould  he  //r. 
effect  to  (Jem/  that  he  is  entitled  to  notice  at  all,  and  the 
sham  and  deceptive  Proceedings  had  better  be  omitted 
altogether."  And  again  at  page  278:  "The  law  is  and 
always  has  been  that  whenever  notice  or  citation  isre- 
(piired,  the  part^-  cited  has  the  ri(/Jit  to  appear  and  he 
heard ;  and  when  the  latter  is  denied  ( note  the  distinction 
between  notice  and  opportnnitif)  the  former  is  ineffec- 
tual for  anji  purpose.  The  denial  to  a  party  in  such  a 
case  of  the  right  to  appear  is  in  legal  effect  the  recall  of 
the  citation  to  hini/'  The  case  of  McVeif/h  v.  United 
i^tates,  11  Quail,  259,  and  the  case  of  Underwood  v.  Mc- 
Veigh, 23  Gratt.,  (Va.)  409,  are  to  the  same  effect,  and 
grew  out  of  the  same  general  state  of  facts.  In  Under- 
teood  V.  McVeifih,  at  page  418,  the  ('ourt  said:  "l^o 
sentence  of  ani/  (/'ourt  is  entitled  to  the  least  respect  in 
any  other  Uonrt,  or  elseiDhere,  when  it  has  been  pro- 
nounced ej-  parte  and  nnthoiit  opportunity  of  defense — - 
a  tribunal  which  decides  without  hearing  the  defendant 
or  giving  him  an  opportunity  to  he  heard  cannot  claim 
for  its  decrees  the  weight  of  judicial  sentences." 

As  has  been  shown,  supra,  the  plaintiff-in-error  was 
confined  to  his  bed  with  an  affection  of  the  spine  and  had 
been  so  confined  for  some  three  weeks  or  more,  on  the 
testimony  on  the  stand  at  the  1899  Proceedings  before 
the  Commission-in-Lunacv  and  Sheriff's  Jurv — had  in 
New  York  City,  twenty  miles  away  from  plaintiff-in- 
error's  cell — on  the  testimonv  aforesaid  of  Dr.  Samuel 


379 


B.  Lyon,  Medical  Superiuteudciit  of  "Blooiniiiiidale," 
falsely  so-called — lej;ally  The  Society  of  the  New  York 
Hospital. 

('ontiiiuiiii;  his  stateiiient,  the  defendant-in-eiTor  says, 
page  2 : 

"The  complaint  alleges  that  the  order  appointing  the 
defendant-in-error  depended  for  its  validity  ui)on  the 
order  of  1899,  adjudging  the  incompetency  and  that  the 
order  adjudging  the  incompetency  was  void  because 
'made  and  entered  without  lawful  or  reasonable  oppor- 
tunity to  plaintiff  to  appear  or  to  be  heard/  and  for  lack 
of  jurisdictitm.  It  is  further  alleged  that  the  oppor- 
tunity to  be  heard  was  (honied  plaintiff-iu-error  because 
when  the  hearing  was  held  he  was  still  in  custody  in 
Bloomingdale  under  the  order  of  1897  committing  him 
thereto,  which  committing  order  was  ohtained  hi/  fraud 
and  perjury,  and  was  made  possible  because  his  pres- 
ence in  the  State,  on  which  jurisdiction  to  make  that 
order  depended,  was  due  to  the  fact  that  he  had  been 
lured  thither  by  persons  acting  in  the  interest  of  his 
relatives. 

"The  answer  denies  all  these  contentions  and  sets  up 
in  addition  as  an  affirmative  defense  the  allegation  that 
at  the  time  of  the  alleged  making  of  the  demand  upon 
the  defendant,  upon  which  the  alleged  conversion  is  pre- 
dicated, and  at  the  time  of  the  commencement  of  the 
action  the  plaintiff-in-error  was  and  still  is,  actually  in- 
sane and  therefore  incapable  of  performing,  by  attorney, 
either  act." 

An  eloquent  example  of  erroneous  statement  is  found 
in  the  words  in  the  above  citation  from  the  defendant- 
in-error's  brief,  as  follows :  "The  answer  denies  all  these 
contentions."  To  take  but  one  of  "all  these  contentions" 
— although  this  learned  Court  will  see,  we  respectfully 
submit,  that  the  law  and  the  facts — both  of  which  are 


380 


well  known  to  the  defeudant-in-error  and  his  learned 
counsel — w^ould  warrant  our  taking  "all  these  conten- 
tions"— to  take  but  one  contention,  to-wit :  that  the  ''com- 
mitting order  was  obtained  by  fraud  and  perjury."  We 
shall  now  cite  a  portion  of  the  testimony  of  Winthrop 
Astor  Chanler — the  chief  Petitioner  in  the  Commitment 
Proceedings  in  March,  1897,  taken  from  his  Deposition 
de  bene  essc^  pp.  35-82. 


381 

UNITED  STATES  CIRCUjt  COURT 
FOR  THE  SOUTHERN  DISTRICT  OF  NEW  YORK. 


JOHN  ARMSTRONG  CHANLER,  Plaintiff, 

against 
THOMAS  T.  SHERMAN,  Defendant. 


IT  IS  HEREBY  STIPULATED  AND  AGREED  by 

and  between  the  parties  to  the  above  entitled  action, 
that  the  testimony  of  Winthrop  Astor  Chanler,  a  wit- 
ness who  is  about  to  go  abroad,  may  be  taken  dc  bene  esse, 
before  a  Notary  Public  at  the  office  of  Evarts,  Tracy 
&  Sherman,  Number  60  Wall  Street,  Ncav  York,  on  the 
sixteenth  day  of  Noveml)er,  nineteen  hundred  and  five, 
at  three  o'clock  in  the  afternoon,  with  the  same  force 
and  effect  as  if  taken  under  an  order  by  the  Court  for  his 
examination ;  and  that  such  testimony  may  be  taken 
down  b3^  a  stenographer  to  be  agreed  upon  and  need  not 
be  signed  by  the  witness,  but  the  stenographer's  notes, 
when  written  out,  shall  l)e  considered  the  testimony  of 
said  witness.  Such  testimonv  shall  be  sul)iect  to  all  legal 
objections  and  exceptions,  to  be  taken  upon  the  trial 
of  said  action,  when  said  testimony  is  introduced,  as  to 
competency,  relevancy  or  materiality  without  the  neces- 
sity of  noting  any  objections  on  the  deposition  except- 
ing as  to  the  form  of  the  question. 

Dated:     New  York,  November  14th,  1905. 
(Signed)      LEO  G.  ROSENBLATT, 

Attorney  for  Plaintiff'. 
(Signed)      EVARTS,  TRACY  &  SHERMAN, 

Attorneys  for  Defendant. 


382 

UNITED  STATES  (CIRCUIT  COURT 
FOR  THE  SOUTHERX  DISTRICT  OF  NEW  YORK. 


JOHN  ARMSTRONG  CHANLER,  Plaintiff, 

against 
THOMAS  T.  SHERMAN,  Defendant. 


New  York,  November  16,  1905. 
Examination  of  WINTHROP   ASTOR   THANLER, 
taken   before  WILLIAM  R.   MONTGOMERY,   Notary 
Public,  under  a  stipulation  annexed  hereto  and  marked 
Exhibit  A. 

APPEARANCES :  For  the  Plaintiff,  Mr.  Leo  G.  Ros- 
enblatt; for  the  Defendant,  Messrs.  Evarts,  Tracy  & 
Sherman. 

CROSS-EXAMINATION  BY  MR.  ROSENBLATT. 

(Page  35). 

Q.  Is  Mr.  Sherman  a  director? 

A.  He  is  not. 

Q.  Has  he  taken  any  active  part  in  the  management 
of  the  Company?  I  want  to  know  has  Mr.  Sherman 
taken  any  active  part  in  the  management  of  this  Com- 
pany? 

A.  No ;  I  should  say  not. 

Q.  Not  as  long  as  you  have  had  anything  to  do  with  it? 

A.  No;  he  has  never  l)een  represented  on  the  board; 
never  been  on  the  board. 


383 


Q.  Never  voted  on  tlie  stock? 

A.  Never  voted — has  he  voted  on  the  stock? 

Q.  Yes. 

A.  As  ;i  connnittee? 

Q.  Yes. 

A.  Yes,  he  has,  by  skiving-  me  power  of  attorney  to  vote. 

Q.  And  yon  voted  for  him? 

A.  I  voted  it. 

(Pages  36-41.) 

Q.  Is  that  The  Merry  Mills? 

A.  No. 

Q.  That  house? 

A.  No. 

Q.  What  is  the  Merry  Mills? 

A.  It  is  a  farm  at  Cobhani,  Virginia. 

Q.  Who  owns  it? 

A.  My  brother. 

Q.  How  long  has  he  owned  it? 

A.  I  do  not  know. 

Q.  Haven't  you  ever  seen  it? 

A.  Never  been  there. 

Q.  Well,  how  is  that ?    You  never  visited  your  brother? 

A.  He  has  never  asked  me  to. 

Q.  How  long  is  this  that  you  have  been  estranged? 

A.  Why,  I  should  not  say  it  was  an  estrangement, 
but  he  has  never  hajipened  to  ask  me  to  go  down  to  stay 
with  him  in  Virginia. 

Q.  You  have  never  gone  of  your  own  accord? 

A.  I  have  never  gone  of  my  own  accord. 

Q.  Never  sought  an  invitation? 

A.  Never  sought  an  invitation. 

Q.  You  have  had  <{uarrels  with  your  brother,  haven't 
vou? 


384 


A.  Well,  the  qiiarrellini;'  was  mostly  on  his  side;  he 
has  quarrelled  with  me  very  often. 

Q.  Were  you  oticc  President  of  this  United  Industrial 
Company  f 

A.  /  was  when  it  first  started, 

Q.  And  did  yon  remain  President  until  December, 
'96? 

A.  I  am  not  sure  of  the  date. 

Q.  Well,  you  said ? 

A.  He  hieked  me  out,  if  that  is  what  you  mean. 

Q.  That  is  what  I  mean.  He  insisted  u]ion  your  re- 
signino? 

A.  He  insisted  upon  my  resitination.  He  always  had 
control  of  the  Company. 

Q.  And  that  was  at  that  meetinji'  at  the  Kensington 
Hotel,  to  which  you  have  referred  in  your  direct  ex- 
amination as  taking  place  in  December,  1896,  wasn't  it? 

A.  December  or  Januarv,  Init  I  am  not  certain  of  the 
date.  My  impression  was  it  was  in  December,  some 
time  before  or  after  Christmas  Day — may  have  been 
after  the  New  Year. 

Q.  Was  there  any  altercation  between  you  at  that 
meeting  at  which  he  kicked  you  out,  as  you  say? 

A.  Yes. 

Q.  What  was  the  nature  of  that  altercation? 

A.  He  threatened  me  in  various  ways.  The  thing  that 
brought  al)out — Let  me  get  this  straight,  because  I  am 
on  oath,  and  I  want  to  get  the  thing . 


Q.  Well,  wasn't  there  some  quarrel  between  you  with 
reference  to  a  suggestion  that  the  plaintiff  made  about 
an  examination  of  the  books  of  vour  father's  estate? 

A.  That  is  perfectly  true. 

Q.  And  that  was  about  this  time  of  this  meeting? 


385 


A.  It  was  at  the  meeting-,  before  these  lientlenien  from 
the  South. 

Q.  Well,  now,  will  you  tell  us  what  you  remember  of 
that? 

A.  He  was  in  bed  at  the  time — in  fact,  in  those  days 
he  seldom  ever  got  out  of  it  until  night  or  late  in  the 
afternoon.  And  he  got  into  an  altercation  with  me  about 
Avhat — I  mean,  it  was  so  fre(|uent  that  I  don't  remember 
that  (luarrel — every  time  we  met, at  the  business  meet- 
ing, because  he  would  not  let  anybody  say  a  word  but 
himself,  and  he  was  very  rude  to  the  President  of  the 
Roanoke  Rapids  I*ower  Company,  Mr.  Habliston,  on 
several  occasions,  and  I  generally  took  their  side,  I  mean 
— it  was  not  fair.  And  I  think  that  row  began  that  day 
probably  in  the  same  way.  He  was  in  a  very  violent 
frame  of  mind,  intensely  irritated  and  irritable,  gen- 
erally, with  me — I  had  that  effect  on  him — and  finally, 
as  a  last  word,  he  told  me  that  he  would  have  my  ac- 
counts as  executor  and  trustee  examined  into  by  a  spe- 
cial accountant.  I  told  him  that  that  had  been  his 
right  ever  since  I  had  taken  that  office,  or  taken  charge 
of  the  business. 

Q.  Who  was  your  co-executor? 

A.  My  brother  Lewis.  My  brother  never  qualified. 
He  was  appointed,  but  he  never  qualified. 

Q.  Lewis  is  the  other  petitioner? 

A.  Lewis  is  the  other  petitioner — And  that  made  me, 
foolishly,  very  angry,  and  we  had  words,  and  I  confess 
to  losing  my  temper  and  crossing  the  room  toward  his 
bed  and  instinctively,  as  if — /  trent  over  there  and  if  he 
had  been  standinf/  near  me  I  should  have  prohahly  struck 
him.  P>ut  he  was  in  bed,  and  he  got  up.  He  said, 
''Hold  on,"  and  he  got  up  in  his  night  gown  and  began 
to  shuffle  his  feet  into  his  slippers  and  Avas  all  doubled 
up  doing  that  in  front  of  me,  and  then  I  saw  what  a 

(25) 


380 


perfectiv  absurd  situation  it  was,  and  I  went  back  to  my 
seat  and  said  nothiiiii'  more.  I  do  not  remember  what 
was  said.  I  did  not  talk  to  him  any  more.  The  other 
gentlemen  were  urging-  us  to  keep  the  peace,  and  I  con- 
fess I  lost  my  temper. 

Q.  Wasn't  there  really  a  good  deal  of  ill-feeling  be- 
tween all  the  members  of  your  family,  on  the  one  hand, 
and  John  Armstrong  Chanler,  on  the  other,  ever  since 
his  marriage? 

A.  No;  distinctly  not. 

Q.  Wasn't  there  considerable  complaint  among  your 
brothers  and  sisters  that  they  were  not  invited  to  his 
wedding? 

A.  No  more  complaint — in  fact,  one  of  my  sisters  was 
doAvn  there ;  my  sister  Margaret  was  present.  There  was 
not  anv  feeling. 

Q.  Didn't  you  yourself  write ? 

A.  Excuse  me.  There  was  no  feeling  anv  more  than 
a  feeling  of  being  hurt  at  not  having  been  asked.  That 
was  the  onlv  feeling  there  was. 

Q.  Well,  how  nmny  of  you  felt  that  way? 

A,  I  should  say  that  they  all  had  that  perfectly  nat- 
ural feeling  about  it. 

Q.  None  of  them  was  asked  to  the  wedd\ng? 

A.  Except  my  sister  Margaret.  That  is  my  impres- 
sion. I  know  she  was  present.  I  do  not  know  whether 
anyliody  else  was  asked  or  not. 

Q.  Who  is  Margaret?    What  is  her  full  name? 

A.  Margaret  Livingstone  Chanler. 

Q.  Is  she  married  since? 

A.  No ;  a  single  woman. 

(Pages  45-48). 
Q.  Was  there  a  law  suit  in  North  Carolina  or  Vir- 


387 


j^iiiin  about  this  Koaiioke  Rapids  Power  Company  prop- 
erty? 

A.   Ill  couiiectioii  with  the  sale  of  the  machinery? 

Q.  Yes. 

A.  Yes. 

Q.  When  was  that? 

A.  I  do  not  know  that  there  was  a  law  snit ;  I  do  not 
know  that  it  got  as  far  as  that. 

Q.  Well,  didn't  somebody  get  an  injnnction? 

A.  Yes,  my  brother  got  an  injnnction. 

Q.  In  what  conrt  was  that? 

A.  In  the  Court  of  Halifax  County,  I  think.  North 
Carolina.  That  is  the  United  Industrial  Company ;  that 
was  not  the  Roanoke  Rapids  Power  Company ;  that  has 
never  had  any  law  suit. 

Q.  There  was  a  law  suit  against  the  United  Industrial 
Company  ? 

A.  Yes. 

Q.  Was  the  suit  against  the  United  Industrial  Com- 
pany, or  was  it  against  the  officers  of  the  Company? 

A.  Against  the  United  Industrial  Company,  as  a  com- 
pany. 

Q.  Brought  by  your  brother? 

A.  Brought  by  my  brother,  an  injunction. 

Q.  And  the  injunction  was  made  permanent,  was  it? 

A.  It  has  not  been  dissolved  yet.  We  are  hoping  to 
get  it  done. 

Q.  Do  you  remember  the  title  of  that  suit? 

A.  No,  I  could  not  tell  you  that.  I  can  tell  you  the 
circumstances. 

Q.  Well,  what  were  the  circumstances? 

A.  The  machinery  in  the  mill  was  deteriorating  right 
along,  for  want  of  use.  It  was  a  peculiar  machinery, 
made  for  the  knit  goods  trade.  The  mill  had  always 
been  a  failure  in  making  knit  goods.    The  offers  that  we 


388 


had  for  the  property — people  coming  and  wanting  to 
lease  it,  people  wanting  to  buy,  they  had  always  said, 
"We  don't  want  your  machinery."  So  we  decided  that 
the  best  thing  to  do  was  to  sell  the  machinery  while  it 
was  still  of  some  value,  and  get  rid  of  it,  and  have  the 
empty  mill  standing  there  for  a  man  to  come  in  and  put 
in  his  own.  After  a  great  deal  of  trouble  we  finally  suc- 
ceeded in  getting  a  purchaser  who  gave  us  a  round  sum 
for  it,  |8,000 — that  Avas  the  best  we  could  do,  and  I  was 
advised — we  were  advised  all  around  that  it  would  be 
much  better  to  do  it,  because  otherwise  it  was  junk, 
it  would  deteriorate  and  become  junk.  We  sold  it  to 
this  man,  and  he  went  down  there  with  his  workmen  to 
remove  it  from  the  mill.  My  brother  was  informed  of 
the  proceeding  and  instructed  an  attorney  in  the  neigh- 
borhood to  get  an  injunction  to  stop  it,  stop  the  ma- 
chinery from  leaving  the  mill.  We  went  down  there 
and  saw  his  lawyer,  my  brother's  lawyer,  and  talked  the 
thing  over  with  him,  with  the  result  that  my  brother 
agreed  to  the  machinerv  leaving  the  mill  and  the  sale 
going  through,  on  condition  that  the  money  for  that  pur- 
pose should  be  held  by  the  receivers  appointed  by  the 
Court,  one  of  whom  was  his  lawyer  and  the  other  was 
ours, 

Q.  When  was  this  injunction  obtained?  Was  it  in 
1902? 

A.  Oh,  no;  quite  recently. 

Q.  In  June,  1905? 

A.  Last  summer,  yes. 

Q.  June  20,  1905,  wasn't  it? 

A.  It  was  pretty  well . 

Q.  The  suit  was  begun  in  October,  1901,  wasn't  it? 

A.  About  the  injunction? 


389 
BY  MR.  RK^KFOKD: 

Q.  The  suit  on  which  the  iujiinetion  was  granted? 

A.  I  don't  hardly  think  it  was  as  long  ago  as  that. 

Q.  That  is  probably  right. 

A.  That  is  probably  right  if  you  have  got  it  down 
there.  I  thought  it  was  in  the  autumn,  biit  it  was  prob- 
ably in  the  spring.  Oh,  yes,  they  held  off,  they  let  the 
stuff  go  through,  providing  we  sent  the  money  down 
there,  and  that  was  in  October,  was  it? 

BY  MR.  ROSENBLATT : 

Q.  That  was  in  October,  1904,  that  the  injunction  was 
obtained,  and  it  was  made  permanent  June  20,  1905. 
A.  That  was  probably  right,  yes. 

(Pages  50-53). 

Q.  Well,  when  were  you  last  an  officer  of  the  United 
Industrial  Company? 

A.  I  am  an  officer  now. 

Q.  Well,  you  were  compelled  to  retire  in  December, 
'96? 

A.  Yes. 

Q.  Then  your  brother  was  committed  shortly  after  to 
Bellevue  Hospital? 

Mr.  Bickford :  Bloomingdale. 

Q.  To  Bloomingdale,  I  mean. 

A.  Bloomingdale. 

Q.  And  when  did  you  again  become  an  officer  of  the 
United  Industrial? 

A.   I  could  not  give  you  the  exact  date. 

Mr.  Bickfoid :  I  do  not  think  this  is  material,  Mr. 
Rosenblatt. 


390 

The  Witness :  I  do  not  know.    After  Mr.  White  gave  it 
up. 

Q.  Was  it  after  the  order  was  made  appointing  Mr. 

Butler  the  committee? 

A.  That  I  was . 

Q.  That  you  became  an  officer  again? 

A.  After  that ;  yes. 

Q.  How  long  after  that? 

A.  I  have  to  look  at  the  books. 

Q.  Was  it  after  the  order  was  made  appointing  Mr. 
Sherman  a  committee? 

A.  I  do  not  know. 

BY  MR.  BICKFORD : 

Q.  Don't  you  remember  how  long  you  have  been  Presi- 
dent? 

A.  I  do  not. 

BY  MR.  ROSENBLATT : 

Q.  Are  you  President? 
A.  I  am. 

Q.  Who  owns  the  controlling  interest  in  the  United 
Industrial  Company? 

A.  Mv  brother,  J.  A.  (Mianler. 

BY  :MR.  BICKFORD: 

Q.  Does  lie  own  a  majority  of  all  the  stock  of  the 
Company  ? 
A.  Yes. 


391 
BY  yin.  KOiSEXBLATT: 

Q.  Then  you  owe  your  presidency  to  tlie  votes  i>iYen 
by  ^Ir.  Sherman  as  eoniniittee? 

A.  1  don't  know  without  looking  that  uj);  it  is  all  on 
record  in  tlie  book;  we  could  have  it  in  five  minutes, 
when  it  happened  and  everything. 

Q.  Did  :\l]'.  Sherman  give  you  his  proxy? 

Mr.  Sherman  :  Excuse  me  to  interrupt  and  say  that 
there  has  uever  been  a  meeting  of  the  stockholders.  I 
think  the  vacancies  have  been  filled  by  the  directors  from 
time  to  time,  in  their  succession. 

il  Who  are  jouv  directors  in  the  United  Industrial 
Company? 

A.  Why  don't  you  get  the  book,  aud  then  1  can  an- 
swer this  much  quicker. 

Q.  \Vho  elected  your  co-directors  and  yourself  as  direc- 
tors in  the  company? 

A.  I  suppose  my  brother  or  his  committee  did  it — 
must  have.     He  has  control,  hasn't  he? 

Mr.  Bickford:     Well,  he  has  not  voted  the  stock. 

Mr.  Sherman  :  I  said  that  the  directors  filled  vacan- 
cies from  time  to  time. 

Mr.  Rosenblatt:  I  know,  but  this  Mr.  AVinthrop 
Chanler  was  not  a  director  at  the  time  his  brother  was 
committed. 

:Mr.  Bickford:  No;  but  the  other  directors  appointed 
Winthrop  ( 'hauler. 

The  Witness:  The  other  directors  appointed  Win- 
throp ( 'hauler. 

Mr.  Boseublatt:     How  can  they  elect  him? 

iNIr.  Shermau :  It  is  a  New  York  corporation,  and 
the  directors  liold  of^ce  until  their  successcn-s  are  ap- 
pointed. 

The  \\'itness :    There  has  never  been  the  slightest  hitch 


392 

in  the  compan^^  It  has  gone  on  smoothly  and  been  all 
right  for  nearly  four  years — and  there  it  is ;  we  can  show 
von  that  at  any  moment. 

*  *  -;;•  *  *  *  * 

Q.  While  yonr  hrothei-  was  in  Bloomingdale  Asylniii 
was  he  able  to  manage  his  property? 

Mr.  Bickford :    Objected  to. 

Mr.  Rosenblatt:  Wlnxt  is  your  objection?  Put  it  on 
the  record,  and  we  will  get  the  answer. 

A.  Do  you  mean  from  a  legal  point  of  view? 

Q.  No,  I  mean  was  he  able  physically  to  manage  his 
property;  was  he  able  to  give  directions  as  to  what 
should  be  done  with  his  property? 

A.  I  do  not  know.    How  can  I  tell  you? 

Q.  Did  he  manage  his  property  while  he  was  in  Bloom- 
ingdale Asylum? 

A.   No,  I  do  not  think  he  did. 

Q.  Were  not  his  hands  tied  so  that  he  could  not 
manage  his  property  while  there? 

Mr.  Bickford  :     Objected  to. 

A.  I  should  say  certainly  not;  his  hands  were  not 
tied. 

Q.  In  what  respect  was  he  able  to  do  anything  about 
his  property  while  he  was  in  Bloomingdale  Asylum? 

A.  He  had  interviews  with  Mr.  White  and  had  inter- 
views with  ]Mr.  IMiilip,  who  went  up  and  saw  him  and 
would  tell  him  what  they  proposed  to  do. 

Q.  How  do  you  know  that?  You  said  that  (m  your 
direct. 

A.  Because  they  would  come  back  and  tell  me  so. 
That  is  all  I  know  about  it. 

•»  •>:•  *  *  *  *  * 

Q.  You  said  that  ]Mr.  White  was  a  friend  of  his? 
A.  A  very  great  friend  of  his;  his  bes;t  friend. 
Q.  Who  told  y<m  this? 


39a 


A.   Mv  brotliLT,  over  and  over  auuiii. 

Q.  AYheii  did  he  last  tell  you  this? 

A.   I  can't  tell  you. 

Q.  Did  i/oii  crci-  sec  any  poircr  of  attorney  ivJiich  Mr. 
Stanford  White  had  from  your  brother  after  your  brother 
teas  committed  to  the  asylum? 

A.  To  the  J)e>>t  of  my  knotoledge  and  belief,  I  did. 

(}.  W'h-dt  was  the  date  of  that  power  of  attorney,  do 
YOU  know? 

A.  I  do  not  know  anything  about  it. 

Q.  How  do  you  mean,  you  do  not  know  anything? 
Didn't  you  see  it? 

A.  I  may  have  seen  it,  but  I  had  nothing  to  do  with 
the  making  of  it. 

Q.  I  know,  but  did  you  see  it? 

A.  To  the  best  of  mv  knowledge  and  belief,  I  saw  it. 

Q.  AVhen? 

A.  I  do  not  know  when — around  about  that  time. 

Q.  Who  sliowed  it  to  you? 

A.  Mr.  White. 

Q.  Where? 

A.  At  his  office,  probably. 

Q.  Don't  you  know? 

A.  I  do  not  know,  no. 

Q.  What  makes  you  think? 

A.  He  mav  have  shown  it  to  me  at  Mr.  Butler's  office. 

Q.  What  makes  you  think  he  showed  it  to  you? 

A.  Because  I  have  a  strong  recollection  of  the  thing 
having  been  obtained  at  that  time. 

Q.  While  your  brother  was  in  the  asylum? 

A.  While  he  was  up  at  Bloomingdale,  yes. 

Q.  Did  you  suggest  to  Mr.  White  that  he  should  ob- 
tain a  power  of  attorney  from  your  brotlier  while  your 
brother  was  in  the  asylum? 

A.  I  did  not. 


394 


Q.  Do  YOU  know  who  did? 

A.  I  do  not. 

Q.  Do  you  know  who  drew  the  power  of  attorney? 
Was  it  Mr.  Butler? 

A.  I  do  not  know.  I  presume  it  was  Mr.  Butler;  he 
was  his  adviser  in  all  that  .Mr.  White  did,  I  should  say. 

(Pages  71-72.) 

Q.  Your  brother  was  committed  March  10th,  1897. 
Now  how  long  prior  to  that  time  did  you  go  South  with 
Mr.  White  and  Dr.  Fuller? 

A.  I  didn't  sav  I  went  South  with  Mr.  White  and 
Dr.  Fuller. 

Q.  Mr.  White  and  Dr.  Fuller  did  go  South? 

A.  Yes. 

Q.  And  you  went  to  Charlottesville,  Virginia? 

A.  To  the  best  of  my  recollection  I  met  them  there. 

Q.  Wlien  was  it  you  met  them  at  Charlottesville;  a 
month  or  a  week  before? 

A.  In  tlie  neighborhood  of  the  first  of  March  I  should 
think ;  the  exact  date  I  can  find  out. 

Q.  Did  you  go  to  Charlottesville  purposely  to  meet 
them? 

A.  Yes. 

Q.  How  can  you  fix  tlie  date? 

A.   I  think  I  have  got  it  in  a  little  diary  at  my  office. 

Q.  And  that  is  the  only  way  you  can  fix  it? 

A.  Possibly  yes,  not  probably. 

Q.  You  can  furnish  that  diary  to  JNlr.  Sherman,  can 
you? 

A.  I  can  furnish  the  date. 

Q.  I  want  the  diarj^ 

A.  I  can  "ive  vou  the  leaf  of  the  diarv  if  I  can  find  the 
diary. 


395 

Q.  Did  yon  see  Ihirtuett,  your  brother's  yalet,  when 
yon  Ayeiit  down  there? 

A.  1  dou't  remember. 

Q.  So  Mr.  John  Armstrong  Chiinler  Ayas  not  in  Char- 
lottesyille  at  the  time  of  your  visit,  was  he? 

A.  No. 

Q.  Where  \yas  he  then? 

A.  To  the  best  of  my  recollection  he  was  at  his  place 
at  Merry  Mills. 

Q.  And  you  did  not  go  with  Mr.  AYhite  and  Dr.  Fuller 
to  Merrv  stills? 

A.  No. 

Q.  Did  you  have  any  conversation  with  them  before 
they  left  Charlottesville  to  go  to  Merry  Mills  as  to  their 
plan  of  action? 

A.  Yes,  sir. 

(Pages  76-79.) 

Q.  Did  Dr.  Fuller  go  down  there  at  your  suggestion 
for  the  purpose  of  examining  your  brother? 

A.  Yes ;  he  didn't  examine  him.  Do  you  mean  examin- 
ing him  for  the  state  of  his  health? 

Q.  Yes. 

A.  Yes,  to  see  what  was  the  matter  with  him. 

Q.  What  did  you  tell  Dr.  Fuller  in  order  to  prepare 
him  for  such  examination? 

A.  I  told  him  that  we  were  informed  tliat  my  brother 
was  in  a  verv  bad  state  of  health ;  that  nobody  could  do 
anything  with  him ;  that  he  Avas  neglecting  all  his  affairs 
and  behaving  in  a  most  extraordinary  manner  and  asked 
him  to  go  down  there  as  his  friend's  physician  and  see 
him. 

Q.  Did  you  tell  Dr.  Fuller  that  these  statements  you 
made  to  him  concerning  your  brother  were  statements 
derived  from  hearsay  from  letters? 


396 


A.  Yes,  sir. 

Q.  Did  you  tell  him  you  did  not  know  auytliiiig  of  your 
own  Ivuowledge? 

A.  I  don't  remember. 

().  Did  YOU  tell  Mr.  White  at  that  time  what  you  had 
heard  from  Virij,inia? 

A.  Yes. 

Q.  Now  you  ha  Ye  very  frankl}^  admitted  that  you  and 
your  brother  were  on  very  unfriendly  terms  at  that  time ; 
is  that  so? 

A.  I  never  said  that. 

Q.  Didn't  you  say  he  kicked  you  out  of  the  office 
of  president  of  the  United  Industrial  Company  in  De- 
cember? 

A.  Yes,. but  there  is  a  much  better  expression ;  insisted 
on  my  resignation. 

Q.  The  phrase  that  he  kicked  you  out  was  your  own 
phrase,  was  it  not? 

A.  Yes,  there  was  no  violence  of  any  s(>rt  used. 

Q.  There  was  a  very  angry  altercation? 

A.  Yes. 

Q,  And  it  reached  such  a  point  that  you  were  on  the 
point  of  assaulting  him  when  you  stopped  to  reflect  that 
your  brother  was  in  bad  health  and  it  would  not  be 
the  right  thing  to  assault  him;  is  that  so? 

A.  Practically. 

Q.   That  is  a  pretty  violent  altercaticm,  is  it  not? 

A.  Pretty  violent  altercation ;  he  had  insulted  mo 
before  strangers. 

Q.  Insulted  you  in  what  way:  you  didn't  say  anything 
about  that? 

A.  I  beg  your  pardon,  I  did.  I  told  you  that  after 
abusing  me  he  said :  "And  w^hat  is  more  I  am  going  to 
have  your  matters  looked  into,  the  estate  accounts  looked 
into,  and  have  them  examined  by  an  accountant,  for 
I  am  not  at  all  sure  that  things  have  gone  right." 


397 


Q.  And  from  that  time  to  this  day  ycm  have  never  seen 
vour  brother,  have  vou? 

A.  1  never  have. 

Mr.  Biekford  :     "^'ou  have  seen  him  once? 

Witness:  I  saw  him  gettinjj;  on  the  phitform,  but  I 
had  no  chance  to  talk  with  him. 

Q.  Am  I  exa<>geratinj;  then  if  i  say  your  relations 
to  him  \\ere  unfriendly  at  the  time  when  you  applied 
for  his  commitment? 

A.  On  ni}'   part,  no,  absolutely  no. 

Q.  The  relations  were  not  brotherly,  were  they? 

A.  A  man  could  refuse  to  see  his  l)rother  even  if  he 
should  express  his  affection  or  dislike  either  way  for 
him. 

(}.  Under  those  circumstances  why  didn't  you  send 
Lewis  ('hauler  down  there  to  investigate  your  brother's 
condition  of  health  instead  of  goins;  yourself — wasn't 
Lewis  more  friendly  to  him  than  you? 

A.  I  don't  recollect  whether  Lewis  was  asked  to  go 
or  not. 

Q.  Who  asked  you  to  go? 

A.  I  was  the  only  one  to  go. 

Q.  Why? 

A.  Because  I  was  associated  with  him  in  business  and 
his  friends  asked  me  to  do  it,  and  I  was  the  oldest  one 
of  the  family.  1  had  seen  him  more  recently  than  any 
of  the  others. 

Q.   How  recently  had  Lewis  seen  him  ? 

A.   I  don't  know,  possibly  not  for  many  months. 

(}.   Row  do  you  know  that? 

A.  I  don't  know  it. 

Q.  Did  you  have  any  conversation  with  Lewis  before 
you  went  down  there? 

A.  Yes. 

Q.  Didn't  the  question  come  up  as  to  whether  he  or  you 
should  go? 


39S 


A.   I  don't  think  so. 

Q.  Did   Lewis  personally  know  anything   about  the 
condition  of  your  brother's  health? 

A.  I  don't  think  so. 

Q.  Do  you  know  whether  Lewis  ever  visited  him  at 
Merrv  Mills? 

A.  I  do  not. 

Q.  Did  Lewis  tell  you  that  he  had  visited  him  at  the 
time? 

A.  No. 

Q.  Did  Lewis  tell  you  that  he  knew  anything  at  all 
about  your  brother's,  the  plaintiff's,  condition  of  health? 

A.  No. 

Q.  Now  did  Mr.  Carey  know  anything  about  your 
brother's  condition  of  health  at  the  time  of  the  commit- 
ment? 

A.  Except  what  Dr.  Fuller  told  him. 

Q.  I  mean  in  addition  to  what  he  was  told  by  Dr. 
Fuller  and  by  you,  did  Mr.  Carey  know  anything  at  all 
about  the  condition  of  your  brother's  health? 

A.  No,  not  at  that  time. 

(Pages  79-80.) 

Q.  So  that  Mr.  Carey  had  not  seen  your  brother  for  at 
least  two  years  prior  to  the  time  of  commitment? 

A.  I  don't  know  that. 

Q.  W^asn't  that  discussed  lietween  you  when  ]Mr.  Carey 
came  down  here? 

A.  It  may  have  been. 

Q.  Now  why,  I  ask  you,  that  is  because  you  probably 
remem1)er  that  in  your  application  for  your  brother's 
commitment  you  and  Mr.  Lewis  Chanler  and  Mr.  Carey 
sign  a  petition  in  which  you  state  that  "Mr.  John  A. 
Chanler  has,  for  several  months,  while  at  his  home  in 


399 


Virj^iiiia,  been  aeting  in  a  very  erratic  manner.  He  has 
limited  himself  to  a  peculiar  diet;  he  has  burned  his 
hands  by  carrying  hot  coals  in  them  ;  he  lias  devised 
many  peculiar  schemes,  such  as  a  roulette  scheme  to 
beat  Monte  Carlo,  and  he  has  given  as  a  reason  of  these 
and  other  acts  that  he  is  inspired  by  a  spirit  which  di- 
rects him ;  for  the  past  three  weeks  entirely  he  has  con- 
stantly talked  of  these  delusions;  has  neglected  his 
health;  has  injured  his  person  and  has  been  at  times 
highly  excited,"  and  then  all  three  of  you  sign  an  affi- 
davit stating  that  you  knew  the  contents  of  the  fore- 
going petition  and  that  the  same  was  true  of  your  own 
knowledge  except  as  to  matters  therein  stated  to  be  al- 
leged on  information  and  belief,  and  there  are  no  mat- 
ters in  the  petition  which  are  stated  on  information 
and  belief;  now  how  did  you  come  to  make  that  affidavit 
that  you  made  these  facts  of  jour  own  knowledge? 

A.  Can  I  say  I  was  told  this  and  that  by  so  and  so 
and  had  seen  him  and  talked  with  him?  You  knoio  I 
didnt  see  him  myself.  You  know  Lewis  nor  Carey 
didn't  see  him. 

(Pages  80-82). 

Q.  Do  you  remember  that  in  your  petition  you  did 
not  state  the  names  of  a  single  one  of  the  witnesses  on 
whose  reports  you  claim  to  have  acted? 

A.  If  that  is  the  way  the  petition  reads. 

Q.  AVho  framed  this  petition?  Do  you  know  who 
wrote  it  out? 

A.  I  do  not. 

Q.  Do  you  remember  whether  you  did  it  or  whether 
vour  lawver  did  it? 

A.  I  didn't  do  it  and  I  had  no  lawver.  Do  you  mean 
at  the  time  of  the  commitment? 


400 


■   Q.  Yes. 

A.  No;  1  had  no  lawyer. 

Q.  Hadn't  you  consulted  with  Mr.  Winthrop,  Jr.,  of 
the  tiriii  of  Jav  &  Candler? 

A.  To  the  best  of  my  recollection  no.  /  consulted  Mr. 
Henry  Lewis  Morris,  who  teas  our  family  lawyer,  but 
I  don't  think  he  had  anything"  to  do  with  drawing  the 
petition. 

Q.  Who  went  down  with  you,  what  lawyer,  to  Judge 
Gildersleeve? 

A.  To  the  best  of  my  recollection  there  was  no  lawyer 
except  my  brother  Lewis,  who  is  a  lawyer. 

Q.  Lewis  is  a  lawyer? 

A.  Yes,  sir. 

Q.  Do  you  remend)er  whether  he  drew  this  petition? 

A.  I  do  not. 

Q.  Do  you  remember  whether  you  read  the  petition 
over  before  vou  signed  it? 

A.  Certainly. 

Q.  You  knew  that  it  was  a  very  serious  matter  you 
were  stating? 

A.  Yes. 

Q.  And  that  the  statements  contained  in  this  petition 
were  very  solemn  statements? 

A.  Yes. 

Q.  And  had  to  be  very  carefully  considered? 

A.  Certainly. 

Q.  And  that  vou  considered  verv  carefullv  this  state- 
ment,  didn't  you  :  "Mr.  J.  A.  Chanler  has  for  several 
months,  while  at  his  home  in  Virginia,  been  acting  in  a 
very  erratic  manner?" 

A.  Yes,  sir. 

Q.  You  considered  that  carefullv? 

A.  Yes,  sir. 

Q.  Why  did  you  speak  of  his  home  in  Virginia?    Did 


401 


you  know  he  had  a  home  in  Vii-oinia? 

A.  I  knew  he  had  a  honse  there, 

Q.  Why  did  you  call  it  a  home? 

A.  I  didn't  say  I  called  it  a  home.  I  didn't  write  the 
petition. 

Q.  You  signed  it  and  swore  to  it? 

A.  Yes. 

Q.  And  you  know  what  home  means,  don't  you? 

A.  I  do." 

How  a  man  with  the  slightest  respect  for  the  truth  can 
deny  the  contention  of  fraud  and  perjury,  where  the 
party  implicated  has  been  forced,  under  cross-examina- 
tion, to  admit  his  wronodoing  as  frankly  and  unequivo- 
cally as  said  Winthrop  Astor  Chanler  was  forced  to  ad- 
mit his  wrong-doino- — we  respectfully  submit— we  ut- 
terly fail  to  see. 

Furthermore.  The  same  spiteful  and  malicious  spirit 
again  appears  in  the  following  gratuitous  slur  on  the 
plaintiff-in-error  upon  the  part  of  the  counsel  for  the 
defendant-in-error — in  the  very  next  paragraph  of  said 
defendant-in-error's  said  statement,  to  wit:  "At  the 
trial,  the  plaintiff-in-error  (who  did  not  personally  ap- 
pear) sought  by  his  counsel  to  introduce  masses  of 
evidence."  The  slur  in  "who  did  not  personally  appear" 
is  palpably  intended  to  convey  the  idea  to  the  Court  that 
the  plaintiff-in-error  was  afraid  to  appear.  Whereas 
the  proved  fact  is  that  the  plaintiff-in-error's  spine  was 
so  injured — a  nervous  affection  thereof — by  years  of 
false  imprisonment  in  "Bloomingdale,"  that  he  was  un- 
able to  testify  except  in  a  reclining  attitude,  and  only 
then  at  certain  hours  and  for  a  briefer  period  than  that 
of  the  daily  session  of  a  Court.  Therefore — for  the 
above  reason — and  that  reason  only,  the  plaintiff-in- 
erroi-  did  not  personally  appear  in  New  York,  but  did 

(26) 


402 


personally  appear  in  (liarlottesvillc,  Virginia,  and  de- 
pose from  on  or  about  the  first  day  of  October,  11)11, 
to  on  or  abont  the  middle  of  January,  1912,  Avith  con- 
tinnances  on  Saturdays  and  public  holidays. 

Continuing;-  his  Statement  the  defendant-in-error  says, 
page  3:  ''At  the  trial  the  plain tift-in-error,  (who  did  not 
personally  appear)  sought  by  his  counsel  to  introduce 
masses  of  evidence  which  were  excluded  as  having-  no 
tendency  to  show  either  that  the  Supreme  Court  of  the 
State  of  New  York  lacked  jurisdiction  to  make  the  order 
of  1899  adjudging  the  incompetency  and  appointing 
the  original  Committee  or  that  the  proceedings  were 
tainted  with  fraud  of  any  such  character  as  would  open 
the  adjudication  to  collateral  attack.  Plaintiff-in- 
error's  counsel  having  failed  to  introduce  or  offer  evi- 
dence sufticient  to  show  even  prima  facie  either  that 
the  New  York  Court  was  without  jurisdiction,  or  that 
its  order  was  invalidated  by  fraud,  the  learned  Trial 
Court  at  the  close  of  this  case  directed  a  verdict  for  the 
defendant-in-error." 

The  foregoing  statement  is  erroneous  in  the  extreme, 
whether  the  statement  be  taken  as  a  whole  or  separated 
into  its  several  parts  or  heads. 

The  learned  Judf/e  Holt  fiatli/  refused  to  hear  evi- 
dence upon  said  heads.  It  was  not  a  question  of  in- 
sufficiency of  evidence.  The  learned  Judge  Holt 
sivrplj/  refused  to  hear  any  evidence  and  frankly  so 
stated. 

On  this  point  we  refer  the  Court  to  the  printed  record, 
pages  24  to  43  and  47  to  59,  inclusive. 

Coming  now  to  the  Points,  Page  4  et  seq.  in  the 
learned  counsel  for  defendant-in-error's  said  brief,  be- 
fore the  Circuit  Court  of  Appeals. 


403 

POINT 

I. 

"THE  LEARNED  TRIAL  COURT  DID  NOT  ERR 
IN  EXCLUDING  EVIDENCE  OFFERED  TO  SHOW 
THE  MENTAL  CONDITION  OF  THE  PLAINTIFF 
A  VARIOUS  TIMES. 

"It  is  perfectly  well  settled  that  the  issue  decided  by 
an  Adjudication  of  the  Court  of  one  jurisdiction  will 
not  be  relitigated  in  the  Court  of  another,  and  that  the 
Adjudication  must  be  taken  at  its  face  value,  unless 
shown  to  have  been  rendered  without  jurisdiction  or 
procured  by  extrinsic  fraud." 

To  which  we  respectfully  submit  that  the  law  and 
the  facts  in  this  case  prove  that  said  Adjudication  was 
rendered  l)oth  without  jurisdiction  and  was  procured 
by  extrinsic  fraud — if  by  extrinsic  fraud  is  meant  fraud 
which  was  not 'known  to  he  fraud  at  the  time  of  the 
Adjudication.  Since  the  question  of  the  perjury  of 
the  three  Petitioners  was  never  brought  forward  in  the 
1897 — the  Commitment  Proceedings — nor  in  the  1899 
Proceedings  before  a  Commission-in-Lunacy  and  Sher- 
iff's Jury;  for  the  conclusive  reason  that  the  plaintiff- 
in-error  was  neither  present  nor  represented  by  coun- 
sel at  either  Proceeding.  Continuing  the  defendant- 
in-error  says,  pages  4  and  5  of  his  said  brief : 

"Accordingly,  the  question  whether  or  not  plaintiff- 
in-error  was  actually  insane  when  so  adjudged  could 
not  be  litigated  in  this  action  (Matter  of  Curtiss,  137 
App.  Div.,  584;  109  N.  Y.  36).  All  evidence  tending  to 
prove  his  sanity  in  1899  was  therefore  utterly  irrele- 
vant and  properly  excluded.  The  same  reasoning  holds 
true  with  added  force  as  applied  to  his  mental  con- 
dition in  1897  and  in  1901." 


404 


To  whicli  we  respectfully  submit,  firsts  that  since 
the  1897  and  1899  Proceedings  are  shown  to  be  null 
and  void,  the  question  of  sanity  at  once  becomes  a 
main  issue.  Second,,  That  since  the  question  of  the 
plaintiff -in-error's  sanity  was  set  up  in  the  defendant- 
in-ervor's  answer  it  becomes  inore  than  ever  a  main 
issue.  See  162  Federal  Reports^  where  the  learned 
Judge  Noyes  says,  page  39,  supra:  ''The  defendant 
joins  issue  upon  the  fact  of  sanity  after  the  New  York 
orders  were  made." 

Continuing  the  learned  counsel  for  defendant-in- 
error  says,  page  6  of  his  said  brief : 

"If  and  tvhen  the  defendant-in-error  offered  evidence 
to  show  that  the  plaintiff-in-error  was  presently  insane^ 
evidence  on  that  subject  would  become  highly  material. 
The  rulings  complained  of  in  these  assignments  of  error, 
so  far  as  they  relate  to  evidence  of  plaintiff-in-error's 
sanity  after  1901,  simply  excluded  matter  not  relevant 
at  the  time  when  offered  and  which  would  become  rele- 
vant only  in  case  the  defendant-in-error  should  offer 
evidence  in  support  of  his  affirmative  defense." 

To  which  we  respectfully  submit  the  words  of  the 
learned  Judge  Noyes,  162  Federal  Reports^  supra: 
^^The  defendant  joins  issue  upon  the  fact  of  sanity  after 
the  New'  York  orders  were  made." 

Continuing  the  learned  counsel  for  defendant-in- 
error  says,  page  6  of  his  said  brief : 

"The  ruling  of  the  Trial  Court,  excluding  the  record 
of  the  Proceeding  in  Virginia  in  1901,  which  purported 
to  adjudge  that  the  plaintiff-in-error  was  sane,  was  cor- 
rect for  the  same  reason.  This  adjudication  might  be 
important  evidence  upon  the  issue  of  sanity  irJinierrr 
that  issue  was  itself  before  the  Court,  but  could  not  be 
received  during  the  plaintiff-in-error's   case." 


405 


To  which  we  respectfully  submit  the  words  of  the 
learned  Judi!,e  Noyes,  162  Federal  Reports,  supra: 

"The  Constitution  of  the  United  States  vests  in  its 
judicial  Department  jurisdiction  over  controversies 
between  citizens  of  different  States.  The  Petitioner, 
as  a  citizen  of  the  State  of  Virginia,  bringing  his  said 
suit  in  the  Circuit  Court  (since  changed  to  the  District 
Court)  of  the  United  States,  was  availing  himself  of  a 
right  founded  upon  this  constitutional  provision.  And 
he  came  into  that  Court  with  a  decree  of  the  Court 
of  the  State  of  which  he  was  a  citizen,  declaring  his 
sanity.  We  can  not  disregard  that  decree/^  And  also : 
"The  defendant  joins  issue  upon  the  fact  of  sanity  after 
the  New  York  orders  were  made." 

AYliich  in  turn  is  supported  by  Mr.  Justice  Harlan  in 
Arrowsmith  v.  GJeasou,  129  U.  S.  86.  ]Mr.  Justice  Har- 
lan said : — "But  this  Court  observing  that  the  constitu- 
tional right  of  the  citizen  of  one  State  to  sue  a  citizen 
of  another  State  in  the  courts  of  the  United  States,  in- 
stead of  resorting  to  a  State  tribunal,  would  be  wortli 
nothing,  if  the  Court  in  which  the  suit  is  instituted  could 
not  proceed  to  judgment  and  afford  a  suitable  measure  of 
redress;  *  *  *  we  have  repeatedly  held  that  the  juris- 
diction of  the  Courts  of  the  United  States  over  controver- 
sies hetiveen  citizens  of  differcni  t^tates,  cannot  he  im- 
paired hij  the  Jaw  of  the  l^tates  k  hich  prescrihe  the  modes 
of  redress  in  tlicir  Courts,  or  which  regulate  the  distrihit- 
tion  of  their  judicial  power — As  said  in  Barroiv  v.  Hin- 
ton,  99  U.  S.,  the  character  of  the  case  is  always  open  to 
examination  for  the  purpose  of  determining  whether, 
ration e  materiae  the  Courts  of  the  United  States  are  in- 
competent to  take  jurisdiction  thereof.  State  rules  on 
the  subject  cannot  deprive  them  of  it." 

Continuing  the  learned  counsel  for  defendaut-in-error 
says,  pages  6  and  7  of  his  said  brief: 


406 


''The  remarks,  in  the  opiiiiou  of  this  Court,  iu  Chanlcr 
V.  HJicrmaii,  162  Fed.  Rep.,  19,  to  the  effect  tliat  the 
present  sauit^^  of  the  plain  tiff -in-error  is  at  issue  in  the 
cause,  do  not  affect  the  correctness  of  the  rulini;s  under 
consideration.  The  (juestion  before  tlie  Court  in  that 
Proceeding  was  siiiijtljj  whether  the  X)laintift'-in-error 
was  entitled  to  a  writ  of  protection  to  enable  him  safely 
to  come  to  New  York  to  try  his  case.  To  decide  this  ques- 
tion the  Court  was  obliged  to  consider  what  questions  the 
plaiutiff-in-error  iniylit  have  to  litigate  during  the  entire 
trial.  One  of  these  questions  uitdouhtedlij  iras  that  as  to 
his  sanity  at  the  times  of  the  alleged  conversion  and  after- 
irard.  If  the  verdict  had  not  been  directed  in  favor  of 
the  defendant-in-error,  the  latter  might  conceivahly  have 
offered  proof  in  support  of  the  allegations  of  continued 
insanity,  which  would  then  have  become  a  highly  im- 
portant issue.  Under  the  circumstances  that  issue  icas 
not  reached.  The  ruling  of  the  Trial  Court,  therefore, 
was  not  in  conflict  with  that  of  this  Court  as  expressed 
in  that  opinion." 

To  which  we  respectfully  submit  the  words  of  the 
learned  Judge  Noyes,  162  Federal  Reports,  supra.  ''The 
defendant  joins  issue  ujxin  the  fact  of  sanity  after  the 
Neiv  York  orders  were  made.'' 

Continuing  the  learned  counsel  for  defendant-in-error 
says  page  7  ct  seq.,  of  his  said  brief : 

POINT 

II. 

''THE  RULING  OF  THE  TRIAL  COURT,  EX- 
CLUDING EVIDENCE  OFFERED  TO  SHOW  THAT 
THE  PLAINTIFF  IN-ERROR,  WHEN  COMiMITTED 
TO  BLOOMINGDALE  HAD  BEEN  FRAUDULENT- 


407 


LY  LTKED  INTO  THE  iSTATE  OF  NEW  VOKK  I-^OK 
THE  PlTin»OSE  WAS  NOT  EKIIONEOUS. 

''Ill  the  tirst  place,  as  has  already  been  stated,  the 
learned  Trial  Court  assumed  for  the  jjurposes  of  the 
case  that  the  plaintilf-in-error  had  been  fraudulently 
lured  (Transcript  of  Record,  p.  3t),  fols.  73-74).  The 
actual  ruling  excluding  the  evidence  of  the  fact  assumed 
caiiiioi,  therefore,  have  been  erroneous.  The  Court,  how- 
ever, was  also  right  in  disregarding  tlie  fact  assumed, 
and  treating  it  as  immaterial.  The  alleged  luring,  if  it 
took  place,  occurred  before  the  1897  Proceeding  and  be- 
fore the  plaintilf  came  to  New  York  in  February  of  that 
3'ear,  That  Proceeding  did  not,  of  course,  adjudge  the 
plaintitt'-in-error  to  be  an  incompetent,  but  merely  pro- 
vided tentatively  for  his  detention  for  his  own  and  the 
public  good.  It  had  nothinf/  ichatcver  to  do  irith  the 
Proceed i II (/  two  years  later  by  which  the  plaintiff-in- 
error  was  adjudged  incompetent.  The  latter  was  a 
whollj^  new  Proceeding,  begun  by  the  issue  and  ser- 
vice of  fresh  process,  and  in  it  the  A\liole  question  of  the 
plaintitf-in-error's  then  j)resent  sanity  was  tried  out. 
The  tribunal  was  not  in  any  sense  governed  by  the  ea? 
parte  order  of  commitment,  but  was  free  to  decide  the 
question  absolutel}'  as  matter  of  /fr.s'f  impref^sioii.  If 
the  plaintiff-in-eiTor  was  brought  within  range  of  the 
order  of  commitment  by  means  of  a  process  of  fraudu- 
lent luring  that  might  affect  the  order  of  commitment, 
but  it  CO II not  affect  an  independent  adjiidicatioii  made 
ifcarfi  tater.'^ 

To  which  we  respectfully  submit  that  the  seven  fol- 
lowing cases — set  forth  at  large,  and  rulings  given  in 
great  fullness  under  Point  1,  The  Nineteen  Points  of 
Law,  i<upra,  show  that  Courts  frown  down  all  attempts  at 
fraud,  trickery,  or  misrepresentation — all  attempts  at 


408 


luring  n  party  from  one  jui-isdiction  into  another  juris- 
diction. The  sole  and  only  Cii-ception  is  in  flic  case  of 
crime.  Tlie  said  seven  cases,  to- wit:  ('arpenfer  v. 
i^pooner,  2  Sandf.  (N.  Y.  S.  Super.  Ct.  ]iep. )  717.  The 
Olean  t^treet  Kaihcaij  Cmpanij,  Respondent,  v.  The  Fair- 
mount  Construction  Company,  Appellant,  55  App.  Div. 
Supreme  Court,  4th  Department,  1900,  p.  292.  Wyekoff 
Y.  Packard,  20  Abb.  N.  O.  420.  ( N.  Y.  City  Court,  Special 
Term  1887).  Baker  v.  Wales,  14  abb.  Pr.  Rep.,  (U.  S.) 
331  N:  Y.  Super.  Ct.  1873,  Gen'l  Term.  Layraves  Case, 
il>.  p.  333,  note  (Supreme  Ct.  1st  District,  Spec.  Term 
1873).    Metcalf  v.  Cla,rk,  41  Barb.  45  (1804). 

So  far,  we  respectfully  submit,  from  the  Commitment 
Proceedings  of  1897,  providing — as  the  counsel  for  the 
defendant-in-error  claims  above — "merely  tentatirely  for 
the  detention  of  the  plaintiff-in-error  for  liis  own  and 
the  public  good" — said  Connnitment  was  pennanent, 
definite  and  for  all  time.  The  onlyreason  why  the  Chan- 
ler  family — the  parties  behind  both  the  1897  an<l  the 
1899  Proceedings — brought  the  1899  Proceedings  to  de- 
clare the  plaintiff-in-error  an  incompetent  person  was 
— on  the  evidence — merely  to  further  their  own  plans 
and  safeguard  the  property  of  the  plaintiff-in-error 
which  their  testimony  at  the  1899  Proceedings  proves 
they  intended  to  inherit  from  the  plaintiff-in-error  and 
fully  expected  to  inherit  from  the  plaintift"-in-error  by 
holding  the  plaintiff-in-error  a  prisoner  for  life  in 
"Bloomingdale'' — falsely  so  called — and  upon  the  plain- 
tiff-in-error's  death  inheriting  his  large  property  through 
being  the  plaintiff-in-error's  next  to  kin.  and  heirs  at 
lani* — since  the  plaintiff'-in-error  was  expected  to  die 


*Winthrop  Astor  Chanler  on  the  stand  at  the  1899  Proceedings, 
(T.  R.  p.  131,  fol.  253).  Q.  "Those  are  his  brothers.  A.  Yes,  sir, 
and  myself.  Q.  And  his  sisters,  name  them?  *  *  *  Q.  Those 
are  all  of  full  age?  And  are  all  his  sisters?  A.  Yes,  sir.  Q.  Those 
are  his  heirs  and  next  of  kin?    A.  Yes,  sir." 


409 


iutestato;  since  the  plaiiitift-iii-eiTor  was  expected  to 
be  kept  a  ju'lsouei-  in  "Blooniinjidale"  until  lie  did  die. 
The  only  reason  for  brin<;ino'  the  18119  Procee<lin<;s  was  in 
order  to  prevent  the  foreclosure  of  a  large  mortgage 
on  a  piece  of  Broadway  property  worth,  according  to 
the  testimony  of  Winthrop  Astor  ("hauler — the  chief 
Petitioner  in  the  Commitment  Proceedings  of  1897 — at 
said  Sheriff's  Jury  Proceedings  in  1899 — worth  several 
hundred  thousand  dollars.  The  property  still  belongs 
to  the  })laintiff-in-error  and  is  known  as  number  298 
Broadway,  New  Yoi'k,  being  a  ten  story  store  and  office 
])uilding.  The  parties  furnishing  the  money  for  the  re- 
building of  said  298  Broadway  had  declined  to  advance 
the  necessary  money  unless  a  Committee  of  the  person 
and  estate  of  the  plaintitt'-in-error  were  a])p()inted,  with 
whom  said  parties  could  contract  and  deal  in  a  regular 
business  way.  Such  contracts  and  such  dealiin>s  being 
out  of  the  question  between  said  parties  and  Nie  plaintiff- 
in-error,  since  the  latter  was  lying  in  a  cell  in  ''Bloom- 
ingdale"  under  a  charge  of  insanity. 

So  far  from  "the  alleged  luring  *  *  *  luul  nothing- 
whatever  to  do  with  the  Proceedings  two  years  later  by 
which  the  ])laintiff'-in-error  was  adjudged  incompetent" 
— as  the  counsel  for  the  defendant-in-error  claims  abov^ 
— said  luring  went  to  the  very  heart  of  the  said  1(^99 
Proceedings;  tainted  them  with  fraud  of  an  incurable 
character  and  irrre  the  sole  and  oiilij  inecvs  of  h^Hnginfj 
ike  latter,  1899  Proceedii)(/s,  to  pass. 

For  without  the  luring  in  1897,  the  1897  Commitment 
Proceedings  would  never  have  taken  place,  since  the 
plaintiff-in-error  was  living  (juietly  at  his  home,  ''The 
Merry  ]\rills,"  Cobham,  Virginia,  and  had  arranged  his 
business  affairs  in  New  York  in  order  to  permit  him  to 
remain  at  "The  ^Merry  Mills''  for  an  indefinite  period- - 
and  it  is  self-evident,  therefore,  that,  tvitJioiit  the  1897 


410 


Proceed iii(/.s,  tJio.se  of  IcSUlJ  coiihl  not  hare  coiik'  to  /»a.ss. 
So  fai*  fi'om  the  18D9  Sheriff's  Jury  Proeeediug  being 
— as  coniisel  for  (lefeiidaiit-in-ei'roT  asserts  above — "a 
wholly  new  Proceeding  begun  bv  the  issue  and  service 
of  fresh  process,  and  in  it  the  whole  (question  of  the 
plaintiff-in-error's  then  present  sanity  was  tried  out" 
tJie  fact  is  tJiaf  the  1S97  (Unin)iitmeiit  l^roeeediiu/s  irere 
Hia<1<  part  (iiid  parcel,  art  and  jxirt  of  said  Sheriff's  Jiirij 
1899  J'roeeediii(/.s  Jti/  bciii;/  joined  thereto — as  an  exami- 
nation of  the  record  in  the  New  York  Supreme  Court  will 
show.  Tlie  1897  Proeeedint/s  irere  speeifieaUif  joined  to 
the  papers  making  u})  the  1899  Proceedings.  And  so  far 
from  "the  plaintiff"-in-er]'or's  then  present  sanity  being 
tried  <nit"' — as  counsel  for  defendant-in-error  alleges 
above  there  was  no  trial  at  all  worthy  the  name.  It  ivas 
a  mere  t rarest}}  of  a  trial. 

'"TJie  plaint iff'-in-error  was  ill  in  tx'd  at  tlie  time  of 
said  trial/' 

The  Medic-al  Superintendent  of  '^Blooniingdale,"  Dr. 
Samuel  B.  Lyon,  so  testified,  snpra,  and  also  testified 
that  plaintiff-in-error  had  been  confined  to  his  bed  with 
the  same  trouble  then — at  the  time  of  the  1899  Pro- 
ceedings— afflicting  plaintiff-in-error — namely  a  pain  in 
his  spine  which  prevented  his  walking — Dr.  Lyon  testi- 
fied that  plaintiff-in-error  had  been  confined  to  his  bed 
with  the  same  trouble  for  three  weeks  previous  to  the 
bringing  of  the  said  Proceedings.  The  plaintiff-in-error 
— -as  Dr.  Lyon  testified — had  asked  him  not  to  repre- 
sent him  at  the  said  Proceedings  but  to  inform  the 
rommission  and  Sheriff's  Jury  tliaf  he  was  ])hysi- 
cally  incai)acitated  from  attending  the  Proceed- 
ings—had twenty  miles  away  from  plaintiff-in-error's 
cell  in  "Bloomingdale" — namely  in  New  York  City. 

Plaintiff-in-error  was  not  present  at  said  Proceed- 
ings, nor  ivas  he  represented  by  Counsel  or  even  a  Guar- 


411 


(Han  <nl  lilfiii   as  was   Mrs.   Yctta   Simon,   in   Simon   v. 
Craft,  Kupra:    No  witnesses  were  brought  exempt  either 
those  ai)i)eariiiii  in  the  1897  Proceeding's  two  years  pre- 
vious— and  in  this  case  no  tvitn esses j  appeared  except 
one  of  the  Petitioners  in  the  1897  Proceedings,  and  in- 
terested  professional   witnesses,    such   as   Dr.    Samuel 
B.  Lyon,  the  said  Medical  Superintendent  of  "Blooiu- 
ingdale"  who  was  naturally  interested  in  retaining  the 
highest  pay  patient  in  "Bloomingdale"— which  the  plain- 
tiff-in-error  was — he  paying  through  the  late  Stanford 
White — at  one  time  his  power  of  attorney — and  later 
througli   the  late   Stanford   White's  brother-in-law,   the 
late   Prescott   Hall    Butler — entirely   af/airist   Plaintiff- 
ill-error's    iriJ]    in    both    instances — over   five    thousand 
dollars  a  year  into  the  ''Society  of  the  New  York  Hos- 
pital" the  legal  name  of  "Bloomingdale."    The  only  two 
other  witnesses  at  said  1899  Proceedings — also  profes- 
sional w  itnesses — were  the  late  Dr.  Austin  Flint,  Senior, 
and  Dr.  Carlos  F.  Macdonald,  paid  alienist  engaged  hy 
the  Ghanler  family — as  the  record  in  the  New  York 
Supreme  Court  shows — to  find  the  plaintiff-in-error  in- 
sane.    Even  Dr.  Samuel  B.  Lyon  was  not  an  unpreju- 
diced   witness    since    the    same    record    sliows    that    he 
alsQ  was  employed  by  the  Chanlers — though  paid  out 
of  the  estate  of  the  plaintiff-in-error — as  tvere  also  Drs. 
Flint  and  Macdonald.X    Continuing,   the  defendant-in- 
error  says,  page  8  of  his  said  brief : 

"In  the  second  place,  it  is  not  alleged  that  the  defen- 
dant-in-error  from  w^hom  damages  are  sought  was  con- 
cerned in  or  privy  to  the  luring,  nor  was  it  specifically 
alleged  or  proved,  nov  was  there  any  specific  offer  to 
prove,  that  even  the  original  .Committee  was  connected 
with  the  acts  complained  of." 


fExcept    an    employee    whose    testimony    was    strictly    confined 
to  property-description.      (T.  R.  pp.  126-130,  fols.  246-252.) 
±T.  R.  pp.  141-142,  fols.  273-277. 


412 


It  is  not  alleged,  we  respectfully  submit,  that  the  pres-- 
ent  "Committee" — falsely-alleged  Committee  of  plaintiff- 
in-error's  person  and  estate — or  his  predecessor  were 
"concerned  in  or  privy  to  the  luring" — but  it  is  strongly 
— most  strongly  inferred. 

For  the  following  reasons.  The  first  falsely  alleged 
Committee — said  Prescott  Hall  Butler — was  the  broth- 
er-in-law of  the  late  Stanford  White,  besides  being  his 
legal  adviser. t  His  successor,  Thomas  T.  Sherman,  is 
a  member  of  the  same  law  firm  of  which  the  late  Pres- 
cott Hall  Butler  was  a  member — namely  the  then  firm  of 
Evarts,  Choate  and  Beaman — now  Evarts,  Choate  and 
Sherman  of  60  Wall  St.,  New  York.  This  firm— as  the 
evidence  contained  in  this  Brief  shows — was  the  private 
Counsel  for  "Bloomingdale."  Moreover,  the  head  of 
that  firm,  Joseph  H.  Choate,  Sr. — now  counsel  for  said 
firm — was — during  all  said  Proceedings  and  is  now 
for  all  that  plaintiff-in-error  knows  to  the  contrary — 
a  Governor  of  The  Society  of  the  New  York  Hospital: 
"Bloomingdale"— falsely  so-called.  It  was  strongly  to 
the  interests  of  said  firm,  therefore,  from  every  profes- 
sional and  business  interest  to  get  so  expensive  and 
valuable  an  asset  to  the  income  of  the  Society  of  the 
NeAV  York  Hospital  as  plaintitf-iu-error  would  be,  into 
the  clutches  of  said  Institution  for  purely  business  rea- 
sons— and — once  there — keep  him  there. 

Continuing  the  defendant-in-error  says,  page  8  of  his 
said  brief. 

"Again,  the  evidence  shows  t]iat  long  before  the  Com- 
mitment Proceeding  Avas  begun,  any  luring  there  may 
have  been  had  spent  any  force  it  may  have  liad.  He  came 
to  New  York  in  February,  1897  (pp.  36-37,  fol.  69) .  The 
petition  on  which  he  was  committed  was  not  verified  till 
March  10th  (p.  112,  fol.  219) . 


tDeposition  6c  bene  esse  of  Winthrop  Astor  Chanler — supra. 


413 


"If,  then,  he  ever  was  lured,  a  period  of  from  ten  days 
to  several  weeks  passed  between  the  lurinr:;  and  the 
takinc:  advantai^c  of  it,  there  was  no  proof,  or  offer  to 
prove,  that  durinjj;'  all  this  time  the  phiintiff  was  not  a 
free  agent  here  or  that  aiii/  frdud  was  nsed  to  indnee 
him  to  remain." 

We  respectfully  submit  that  the  luring  had  not  "spent 
any  force  it  may  have  had"  as  defendant-in-error  alleges 
above.     For  the  following  reasons : 

First.  Had  there  been  no  luring  ihe  phiititiff'-in-error 
would  never  have  been  in  New  York. 

i^econd.  While  there  the  late  Stanford  Wliite  was  in 
constant,  even  daily,  communication  with  plaintift'-in- 
error  who — trusting  the  late  Stanford  AYhite  as  his  best 
and  closest  friend  confided  in  said  Stanford  White  all 
his  plans  and  wishes.  Said  Stanford  White  therefore 
knew  that  there  was  no  fear  of  plaintiff -in-error's  hurry- 
ing back  to  Virginia  without  due  and  ample  notice  to 
him— said  Stanford  White.  Since  said  Stanford  White 
had  requested  plaintiff-in-error  to  permit  said  Stanford 
AVhite  to  become  the  latter's  unlimited  power  of  attorney 
to  transact  all  plaintift'-in-error's  business  for  him  in 
New  York  when  plaintilf-in-error  should  return  to  his 
home  in  Virginia.  As  is  explained  in  Phiintiff's  Exhibit 
G — the  letter  from  plaintiff-in-error  to  the  late  Captain 
Micajah  Woods,  attorney  at  law  of  Charlottesville,  Albe- 
marle County,  Virginia,  dated  July  3,  1897 — written  in 
"Blooming-dale" — plaintiff-in-error  declined  to  give  said 
Stanford  White  an  unlimited  power  of  attorney,  but  did 
give  said  Stanford  White  a  limited  power  of  attorney. 
This,  of  course,  necessitated  frequent  business  confer- 
ences between  said  two  parties  and  said  Stanford  White 
well  knew  that  plaintiff-in-error  would  not  think  of  re- 
turning to  Virginia  until  all  his  affairs,  in  a  business 
way,  had  been  fully  explained  to  said  Stanford  White. 


414 


AVlieu  this  liad  been  done — wliicli,  of  course,  re(inired 
time — said  Stanford  White  beinii  at  the  liead  of  the  great 
firm  of  architects,  McKim,  Mead  and  White,  of  New 
York  City,  was  an  extremely  busy  man  and  could  not 
spare  the  time  to  acquaint  himself  with  plaintitr-in-error's 
multifarious  business  interests,  North  and  South,  except, 
at  rather  lonji,-  intervals.  Hence  it  required  about  a 
month^plaintiff-in-error  reached  New  York,  February 
13th,  1807,  and  was  arrested  and  taken  to  "Blooming- 
dale"  March  13th  of  the  same  year — to  wind  up  plaintiff- 
in-error's  affairs  and  put  them  in  such  shape  that  said 
Stanford  White  might  be  in  a  position  to  intelligently 
handle  the  same.  No  sooner  had  plaintil¥-in-error  done 
this  than  he  was  arrested  and  carried  to  "■Bloomingdale." 
Plaintiff-in-error  teas  a  "free  agent"  as  defeudant-in- 
error  asserts  above,  in  so  far  as  a  man  can  l)e  a  "free 
agent" — under  surveillance. 

Continuing,  the  defendant-in-error  says,  pages  8  and 
9   of  his  said  brief: 

"Moreover,  even  if  the  Commitment  Order  of  1897 
was  made  possible  by  a  fraudulent  luring  of  the  plaintiff- 
in-error  into  the  State  of  New  York,  the  jurisdiction  of 
the  court  was  not  impaired  thereby.  As  was  pointed  out 
by  the  learned  Trial  Judge,  the  jurisdiction  of  the  State 
over  questions  of  incompetency  depends  upon  very  dif- 
ferent principles  from  those  involved  in  questions  of  in- 
dividual controversies.  The  State  itself  has  a  vital  in- 
terest in  the  proper  disposition  of  incompetent  persons 
and  it  has  the  right  and  duty  to  determine  the  mental 
condition  and  status  of  every  person  witJiin  its  boun- 
daries at  anv  given  time.  The  decisions  cited  bv  the 
learned  counsel  holding  that  where  the  service  of  a  sum- 
mons in  a  suit  involving  an  ordinary  private  controversy 
is  obtained  after  the  defendant  has  been  fraudulently 
lured  into  the  jurisdiction,  the  summons  will  be  set  aside, 


415 

diffor  from  the  case  at  bar  in  two  material  particulars. 
Ill  tlie  first  place,  the  attack  in  those  cases  is  always 
direct,  by  motion  in  the  action  itself  to  set  aside  the 
summons,  and  not  collateral,  by  an  acticm  in  another 
jurisdiction.  In  the  second  place,  the  private  contro- 
versy involves  no  public  (luestion  and  the  court  is,  there- 
fore, fully  justified  in  declining  to  give  either  of  the 
parties  the  benefit  of  its  assistance  wlien  its  aid  has  been 
invoked  by  fraud.  \Miere,  however,  as  in  an  i^snc  as  to 
iiLsauiti;,  the  State  itself  has  an  inherent  interest  in  the 
controversy,  the  Court  will  not  decline  jurisdiction  even 
if  the  alleged  incompetent  is  improperly  hroiight  wiihin 
its  territorial  sphere.  The  Court  cannot  and  will  not 
shirk  the  duty  which  it  owes  the  whole  public  of  deter- 
ming  whether  or  not  the  person  in  question  belongs  to  the 
class  which  re(|uires  supervision,  merely  because  the  pres- 
ence of  the  alleged  incompetent  within  its  territorial 
jurisdiction  has  been  brought  about  by  a  fraud  upon 
him.  He  is  there  and  must  be  dealt  with.  No  authority 
yet  cited  to  support  the  plain  tiff -in-error'-s  contention 
has  held  that  an  adjudication  as  to  insanity  can  be 
attacked  collaterally  on  any  such  ground." 

Replying  to  the  learned  counsel  for  defendant-in- 
error's  allegation  above:  "No  authority  yet  cited  to  sup- 
port the  plaintiff-in-error's  contention  has  held  that  an 
adjudication  as  to  insanity  can  be  attacked  collaterally 
on  any  such  ground."  We  respectfully  submit  that 
neither  does  any  authority  cited  to  support  the  defen- 
dant-in-error's  contention  to  the  contrary  hoJd  to  the 
contrary.  Insanitu  is  about  the  least  known  hraneh  of 
law.  It  is,  therefore,  impossible  to  find  authorities  which 
touch  at  anji  angle,  cases  where  aller/ed  insanity  is  in 

issue. 

Furthermore.    This  case  of  Chaloncr  v.  .Sherman  is  an 
nnpreecdeiited  ca.^e   in   the  entire  annals  of  lair. 


416 

111  support  of  the  above  contention,  we  respectfully 
submit  that  we  know  of  no  case — short  of  a  Chancery 
case,  dealing-  exclusively  with  wills  or  infants — which 
has  required  more  than  twenty  years  to  reach  a  hearing 
— more  than  twenty  tjcarn  to  hriiuj  in  the  evidence — m,ore 
than  twenty  years  for  the  plaintiff'-in-error  to  have  Ids 
day  in  Court. 

Every  step  in  plaintiff'-in-error' s  case  makes  new  law. 

In  support  of  the  above  contentions,  we  respectfully 
submit  the  unusual  words  employed  by  the  learned 
Judge  Noyes,  in  describing  said  case  of  Chanler  v.  Sher- 
man, 162  Fed.  Rep.,  19.  To  wit,  162  Fed.  Rep., 
supra.  ''The  extraordinary  relief  prayed  for  here.''  It 
was,  therefore,  impossible  to  find  authorities  to  supp<n-t 
our  contention  against  the  legality  of  luring  an  alleged 
lunatic  into  a  foreign  jurisdiction  for  the  purpose  of  in- 
carcerating him  as  a  lunatic. 

By  an  alleged  Uinatic.  of  course,  we  mean  a  person 
merely  accused  hy  a  private  individual  or  yroup  of  pri- 
vate individuals  of  hciny  iusauc — hut  ivho  has  never 
in  any  way  been  convicted  of  iuxanity  hy  any  sort  of 
judicial  process. 

The  same  safeguards  which  the  law  throws  around  all 
persons  in  regard  to  criminal  accusations — namely — that 
all  persons  are  innocent  until  proved  guilty;  the  law 
throws  around  all  persons  in  regard  to  accusations  of  in- 
sanity— namely — all  persons  are  sane  until  pro>-rd  insane 
— until  after  conviction.  As  the  first  herouics  a  convict  so 
does  the  second  become  a  lunatic — an  in<-o)upetrnt. 

The  learned  counsel  for  defendant-in-error  himself 
supports  our  vieiD  in  the  following  phrase — under  Point 
I  of  his  said  brief — to  wit :  ''The  presumption  of  sanity 
would  no  doubt  have  taken  care  of  the  plaintiff-in-error.^' 

But,  we  respectfully  submit,  the  soundness  of  our  posi- 
tion  requires   no   authority — beyond   the   authority   of 


4:1: 


loiiic  lo  sui)]>(»i-t.  Tims.  Were  il  a  (iiicstio!!  of  a  i('i>u- 
lai-lv  (leclarcd  iiisaiic  i)ersoii  llio  matter  would  bear 
an  entirely  ditferent  aspect.  And  there  could  be  no 
])()ssible  objection  to  deceivino-  a  judicially  declared 
lunatic.  F>ut  in  the  case  at  bar  the  conditions  were  ut- 
terly ditterent.  There  was  no  question  of  a  regularly 
declared  lunatic,  of  a  judicially  declared  insane  person. 
Far  from  if.  There  was  merely  the  question  of  a  parcel 
of  unscrupulous  and  avaricious  relatives  who  had  been 
estrauiied  from  the  plaintiff -in-error  since  the  time  of 
his  marriage  in  June,  1888 ;  because,  at  the  bride's  "re- 
(;uest,  only  one  iiuMuber  of  the  ("hauler  family  received 
an  invitation  to  said  wedding.  This  led  to  a  breach  in 
the  natural  family  relations  between  the  plaintiff-in- 
error  and  the  ('haulers,  which  is  fully  and  graphically 
set  forth  in  sundry  letters  received  from  Winthrop 
Astor  ("hauler  and  his  wife,  on  evidence  in  the  deposi- 
tion of  the  plaintiff-in-error,  mention  of  w^hich  is  found 
on  ])]».  144-150  of  ap])endix  to  this  brief,  which  shows 
the  intensity  of  the  animosity  thus  aroused,  and  the 
ominous  threat  of  future  trouble  in  consequence. 

LETTERvS    SHOWING    BAD    BLOOD    BETWEEN 

PLAINTIFF-IN-EKKOR  AND  THE  THANLEK 

FAMILY,  pp.  144-154,  Trial  Brief. 

THE  CHANLER  FAMILY  LETTERS. 

^'Rokeby," 
Barrytown,  N.  Y.,  June  23d,  1888. 
(To  John  Armstrong  Chaloner. ) 

Dearest  Brogf : — Many    thanks    for    your    delightful 
letter  flowing  with  metaphorical  milk  and  honey. 
I  am  so  glad  you  are  so  happy,  dear  old  boy,  and  that 


fPlaintiff-in-error. 

(27) 


418 


you  find  the  (Ireaded  iiiiUTJa.u,o  state  not  such  a  l)u<i,l)ear 
after  all.  1  congratulate  you  with  all  my  heart  on  your 
winning  such  a  fair  and  noble  i)rizc  in  the  life  race, 
seeing  how  richly  you  deserve  all  happiness  that  may 
come  to  you.  Now  I  am  going  to  speak  (|uite  frankly  about 
a  matter  which  has  been  exercising  us  all  a  good  d(^ai, 
and  whose  nature  you  seem  entirely  unconscious  of. 
Far  be  it  from  me  to  throw  the  slightest  chmd  across 
your  sunshine,  though  in  the  present  state  of  the  ther- 
mometer a  cloud  would  be  rather  a  grateful  change, 
for  the  heat  is  oppressive,  but  I  don't  think  you  realize 
in  the  least  how  very  keenly  we  all  felt  your  treating 
us  as  if  we  were  mere  outsiders  to  be  classed  with  re- 
porters and  other  noxious  and  inquisitive  bipeds. 

The  news  of  your  marriage  was  known  to  hundreds 
of  people  before  it  reached  us.  Aunt  Caroline  Astor 
was  here  on  Thursday  afternoon  and  said  :  ''^Vell,  1  liear 
Archie"*"  is  being  married" — we  naturally  ])o()hp;)ohed 
the  thing  as  a  newspaper  story.  The  next  day  the 
"Herald,"  "Times,"  etc.,  confirmed  the  fait  accompli, 
not  until  Monday  did  we  get  any  news  from  Virginia, 
and  in  the  meantime,  as  it  happened,  we  had  a  stream 
of  visitors  who  could  none  of  them  fail  to  be  surprised 
at  our  being  left  so  totally  in  the  dark. 

Naturally  ire  felt  rcry  iiiiich  liiirt  at  su;-h  neglect, 
poor  Alida  has  cried  her  eyes  out  several  times  feel- 
ing that  you  do  not  care  for  her,  the  boys  are  all  vexed 
and  affronted.  AYintie  and  I  try  to  make  the  best  of 
the  nuitter,  hut  for  sereral  days  we  could  not  trust 
ourselves  to  speak  of  it.  Your  announcement  that  you 
will  stay  in  Virginia  all  summer,  read  aloud  at  table 
last  night  reopened  the  wound,  poor  Bunch's  tears 
rolled  down  her  cheeks  into  her  strawberries.  I  think 
you  ought  to  try  to  come  up  for  a  week  at  least,  before 


tPlaintiff-in-error. 


419 


the  girls  sail,  I  assure  you  the  thing  is  worth  a  sacri- 
fice. The  world  which  you  seem  to  care  about  a  good 
deal — as  who  does  not?  has  got  liold  of  the  idea  that 
your  family  is  not  overpleased  with  your  marriage, 
nothing  as  vou  know  could  be  falser  than  this,  but  it 
is  you  who  have  given  it  this  impression,  it  rests  with 
you  to  efface  it.  You  know,  without  my  telling  you  how 
warm  your  welcome  would  he  here  and  I  think  you 
owe  it  to  yourselves  as  well  as  to  us,  to  let  us  see  you 
here. 

Think  it  over  well,  remember  how  much  weight  and 
stress  you  always  lay  on  duties  to  your  family.  I  say 
no  more,  fearing  you  take  me  already  for  a  tiresome 
old  lecturer.  Please  understand  that  I  write  because 
I  think  it  is  best  you  should  know  how  the  land  lies 
about  Rokeby,  and  show  you  how  you  may  make  a  dif- 
ference, I  won't  say  for  your  whole  future,  but  cer- 
tainly for  several  months  of  it  by  your  present  move- 
ments, in  the  whole  feeling  of  the  family.  Mr.  Bost- 
wick  has  just  returned  from  Baltimore,  quite  worn  out 
with  dodging  questions  as  to  why  none  of  the  family 
were  present,  etc.,  etc.,  and  he  told  Win  tie  last  night 
that  you  ought  really  to  know  how  the  farmers  and 
people  about  here  are  talking  at  your  not  coming  up 
nor  having  had  any  one  down.  The  only  way,  you  see, 
to  do  away  with  all  these  false  impressions  is  for  you 
to  come  up  here  as  soon  as  possible. 

This  is  not  a  case  for  quibbling  arguments  about  in- 
significant "side  issues,"  you  have  got  yourself  into  this 
false  position  and  you  owe  it  to  your  wife  and  her 
future  relations  to  the  family  to  get  yourself  out  of  it. 
Use  your  own  judgment  as  regards  telling  Amelie  about 
all  this,  she  has  had  enough  worries  and  should  be 
spared  as  much  as  possible.    Give  her  my  love — Wintie 


420 


joins  me  and  stirs  he  won't  trust  himself  to  talk  any 
more  on  the  subject. 

Very  affectionately, 

DAISY. 

Alida  sends  love  to  you  both — also  i>ive  Margaret  love 
from  ns  all. 


( From  AVintbrop  Astor  Cbanler. ) 

''Rokeby," 

Barrytown,  N.  Y.,  June  19. 

My  Dear  Margaret: — I  have  been  waiting  until  I 
could  control  my  temper  before  answering  your  letter. 

If  ever  two  people  deserved  a  good  spanking  those 
two  are  Brog  and  you.  Of  course  you  were  but  as  putty 
in  his  hands,  and  backed  him  up  in  his  absurd  mysteries 
— but  still  your  own  common  sense,  if  no  other  feeling, 
should  have  told  you  that  he  was  quite  wrong  in  acting 
as  he  did.  Now  I  suppose  you  are  wondering  what 
I  am  driving  at.     Wait  a  bit  until  I  tell  you  a  story. 

A  detachment  of  the  British  Army  in  India  was  on 
the  march.  An  officer  was  very  anxious  to  know  wheth- 
er the  army  was  to  halt- the  next  day  and  asked  one 
of  the  staff  officers,  who  had  once  been  a  friend  of  his, 
about  it.  ''I  really  do  not  know  the  intentions  of  the 
General"  was  the  reply.  Then  says  the  Chronicler, 
returning  to  his  tent  disgusted  with  the  airs  of  his 
former  companion  he  was  met  by  his  servant  with  the 
information  that  the  army  was  to  halt  the  next  day. 
"Where  did  you  learn  that?"  said  the  officer.  "Major 
M's  (the  staff  officer)  washerman  tell  me."  So  Major 
M.  could  tell  his  "washerman"  that  he  might  take  ad- 
vantage of  the  halt  to  blanch  his  linen,  but  he  could  not 
communicate  it  to  an  old  friend ;   although   from   the 


421 


situation  of  the  army  it  mattered  not,  in  a  military 
point  of  view,  if  the  fact  were  known  from  one  end 
of  India  to  the  other.  Just  read,  mark,  learn,  etc., 
this  parable  and  I  think  you  will  see  how  the  cap  fits. 
You  could  write  to  Mr.  Morrisf  and  tell  him  to  be  sure 
the  "d"  was  left  out  of  the  name,  etc.,  etc. — and  yet 
you  could  not  send  one  line  or  word  to  anv  member  of 
your  family  so  that  we  could  drink  the  bride's  health. 
As  it  happened  Archie's  alleged  telegram  never  reached 
us. 

Alida  at  "Tranquillity"?  and  all  of  us  at  "Rokeby" 
heard  it  from  an  outsider  and  the  daily  papers.  Of 
course  Brog,  like  Sir  xVndrew  Aguecheek,  will  have  fifty 
^'exquisite  reasons''  for  it  all.  He  always  has.  It  won't 
make  much  dijference  now  what  he  says.  It  is  all  over 
the  country  that  not  a  single  member  of  his  family 
knew  he  was  going  to  be  married  so  soon.  That  don't 
look  well,  does  it?  1  am  (/lad  lie  is  irhcrr  he  is  so  iinirJi 
appreciated  for  his  stock  is  helow  par  up  here.  I  cabled 
the  news  to  Bess,  lest  she  too  should  hear  through 
the  papers.  Alida  wrote  me  a  piteous  letter  today  asking 
for  news — what  news  can  I  give  her?  That  you  leave 
Virginia  in  a  week?  Another  little  point  for  you  and 
Brog  to  digest  at  vour  leisure  is  this.  The  outcome  of 
his  sublime  and  fatuous  predilection  for  mystery  is  that 
as  your  name  was  only  in  one  paper  the  great  majoritv 
for  whom  he  poses  think  that  no  member  of  his  family 
was  present  at  his  wedding.  You  can  draw  your  in- 
ferences. 

This  is  all  I  am  going  to  say  on  the  subject,  except 


fSaid  Henry  Lewis  Morris — the  Chanler  Family's  lawyer.  See 
affidavit  of  Egerton  L.  Winthrop,  Jr.  (T.  R.,  pp.  141,  142,  fols. 
273-276.) 

IThe  country  place  at  Allamuchy,  Hackettstown,  Warren  County, 
New  Jersey,  of  the  late  astronomer  Lewis  Morris  Rutherfurd. 


422 


that  it  is  useless  to  tell  Amelie  an3^thing  about  it.  She 
has  nothiug  to  do  Avith  it,  and  need  not  be  made  uncom- 
fortable. 

Yours, 

W. 


(From  Winthrop  Astor  Clianler. ) 

"Rokebv," 
Barrytown,  N.  Y.,  June  22,  1888. 

My  Dear  Margaret: — On  our  return  from  Albany  to- 
da^^,  where  we  had  dined  and  spent  the  nit>ht  with  Mrs. 
Pruyn,  I  found  your  lono'  letter. 

Your  reasons  for  not  letting  us  know  are  precisely 
what  we  all  supposed  them  to  liave  been.  Of  course,  we 
all  knew  perfectly  well  that  you  wanted  to  send  us 
word  and  that  Archie  would  not  let  you.  When  you  say 
that  you  did  not  consider  it  proper  for  you  to  discuss 
the  matter  with  and  differ  from  him  we  disagree  with 
A'ou  entirely.  It  was  your  business  to  fight  any  such 
proceeding  on  his  part  with  all  your  might.  Particularly 
so  when  you  thoroughly  realized  how  we  would  feel  as 
you  say  you  did.  In  fact,  eyery  word  in  your  letter  and 
in  Brog's  to  Daisy  goes  to  confirm  us  in  our  opinion. 
The  Riyes  had  a  perfect  right  to  wait  till  after  the  wed- 
ding before  cabling  to  the  Col.  if  they  so  wished.  They 
had  plenty  of  relatiyes  in  the  house  to  back  them  up  in 
anything  they  chose  to  do — if  the  Herald  is  to  be  belieyed. 
Besides  there  are  a  half  dozen  ways  in  Avhich  Brog  could 
haye  let  us  kno\y  the  day  before  if  he  had  wished.  He 
could  haye  written  or  telegraphed  in  French.  As  soon 
as  he  had  had  his  interyiew  with  the  Herald  reporter  he 
could  haye  sent  us  word.  The  whole  ti'ouble  is  that  he 
apparently  looked  upon  the  family  in  the  same  light  as 


423 


the  public — icitli  a  stroiH/  jn-cfci-riicc  for  lite  public  I 
am  }i(>(  !J<tlii<j  to  (ll.sciis.s  tlic  iitdtlcr  a  111/  fiirilicr  rf.s  re- 
(jurds  the  <lisa(jrceahlc  position  lir  has  .seen  /il  to  put  iis 
all  in  and  Its  result  in  the  eyes  of  the  world  of  whom 
he  seeius  to  stand  in  sncU  dread.  Nor  am  1  <ioin</  to 
discuss  the  utter  fizzle  of  his  attempt  at  b,ecrecy.  1  iclll 
si  in  pi  1/  saif  thut  he  has  done  the  very  thlny  of  all  others 
he  sJiould  hare  not  done  under  the  circumstances  and 
that  lie  has  hurt  the  feelings  of  his  entire  connection 
on  this  side  of  the  water  in  a  way  that  tlioiii;h  they  may 
say  nothiiij>-,  yet  loill  make  them  show  it  for  a  long  time 
to  come.  In  the  most  important  epoch  of  his  life  he  has 
made  a  fool  of  himself  and  hurt  his  wife  in  the  eyes  «)f 
the  puhlic.  You  can  show  him  both  my  letters  on  con- 
dition that  he  does  not  tell  his  wife  about  the  contents 
more  than  is  necessary.  I  will  write  to  liim  as  soon  as 
J  can  talk  of  something  else. 

Yours, 

W. 

P.  S. — Remember  I  want  you  to  show  both  my  letters 
to  Brog.  You  can  leave  the  matter  of  repetition  to  his 
own  judiiment. 

W. 


(From    Winthrop   Astor   Chanler   to   John    Armstronj^ 

Chaloner. ) 

"Rokebv," 

Barry  town,   N.   Y.,   June  21,   1888. 

Dear  Broo- : — Just  a  line  from  an  outsider  to  disturb 

the  perfect  bliss  of  Arm  Ida's  garden.     Ask  for  and  read 

the  two  letters  I  have  written  to  Mari>tir(^(  iu  the  name 

of  the  Rokehyites  and  use  your  own  jud^uieut  about  re- 


424 


peatiiig  the  contents.  Love  to  Armida — We  don't  want 
any  (•uttini>s  from  the  Hci-ahl  oi-  any  other  of  yonr 
friends  the  Journalists. 

Yours, 

W. 

P.  S. — The  weather  here  is  very  warm,  93  in  the 
shade  today — /  wonder  if  you  wouldn't  find  it  cool  in 
spite  of  the  thermometer. 


(From  Jolin  Arnistron<»   Chaloner  to  Winthrop  Astor 

Chanler. ) 

"Castle  Hill," 
Albemarle  rounty,  Virginia,  June  27th,  1888. 
Dear   Wintie : — 1   have   received  jouy  note   of   J  une 
21st,  and  I  shall  want  an  apology  from  you  in  writing, 
before  anything  further  can  pass  between  us. 

Yours, 

J.  A.  C. 


Nine  years  later  AVinthrop  Astor  ('hauler  makes  fully 
good  the  direful  threat  contained  in  the  following  sin- 
ister language — taken  from  his  aforesaid  letter  of  June 
22,  1888.  To  wit :  "I  am  not  going  to  discuss  the 
matter  any  further  as  regards  the  disagreeable  posi- 
tion he  has  seen  fit  to  put  us  all  in;  and  its  result  in 
the  eves  of  the  world,  of  whom  he  seems  to  stand  in 
such  dread.  Nor  am  I  going  to  discuss  the  utter  fizzle 
of  liis  attempt  at  secrecy.  /  u-iJl  siniphj  sai/  that  he 
has  done  the  reri/  tJiinr/  of  all  otJicrs  he  should  not  hane 
done  under  the  circuuisttDiccs:  and   that  he  has  hurt 


425 


the  feelings  of  his  entire  connection  on  this  side  of  the 
water ^  in  a  tvay  that  though  they  may  say  nothing,  yet 
will  make  them  shoto  it  for  a  long  time  to  come.  In 
tlie  inoKt  Impovtant  epoch  of  his  life  he  has  made  a  fool 
of  himself,  and  hurt  his  wife  in  the  eyes  of  the  public." 

And  when  we  add  to  the  above  the  unnatural  hatred 
of  his  brother — there  is  no  other  word  for  it,  we  respect- 
fully sunibit,  upon  the  evidence  of- said  Winthrop  Astor 
Chanler's  acts — and  when  we  add  to  the  above  the  un- 
natural hatred  of  said  Winthrop  Astor  C'hanler  for  his 
brother — the  plaintift"-in-error — displayed  by  his — said 
Winthrop  Astor  Chanler's — attempt  to  physically  as- 
sault said  brother — the  plaintiff-in-error — even  though 
the  latter  u-as  in  bed  and  unicell  at  the  time — as  is  fully 
set  forth  in  the  portions  cited,  supra,  of  the  deposition 
de  bene  esse  of  said  Winthrop  Astor  Chanler. 

As  was  said  above,  there  was  no  (juestion  here  of  a 
regularly  declared  lunatic,  of  a  judicially  declared  insane 
person.  There  was  merely  the  (juestion  of  a  parcel  of 
unscrupulous  and  a\ari(ious  relatives,  who  had  been 
estranged  from  the  plaintift'-in-error  since  the  time  of 
his  marriage  in  June,  188S;  who  had  subsequently — one 
and  all — (luarrelled  with  plaintilf-in-error  because  of 
said  marriage;  and,  subseqiu^ntly,  had  not  scrupled  to 
employ  agents  to  inveigle  plaintiff-in-error  \\'ithin  the 
confines  of  the  State  of  New  York  with  the — on  the  evi- 
dence— indisi)utable  purpose  of  there  incarcerating  plain- 
tiff-in-error for  life,  and,  upon  the  death — in  the  course 
of  time— of  plaintiff-in-error,  of  possessing  themselves 
of  plaintift-in-error's  property  of  largely  over  a  mil- 
lion dollars  in  value,  and  steadily  increasing  in  value. 

The  balance  of  the  cilation  above  from  defendant-in- 
error's  brief  is  so  honeycombed  with  sophistry,  so  riddled 
l)y  fallacy  that  it  is,  we  respectfully  submit,  simply  and 
palpably  beneath  seri(ms  notice.  We  shall,  therefore, 
content   ourseh'es   bv   saving   that    the   leai-ned    counsel 


426 


for  the  defeudant-in-error  //«6'  put  the  cart  he  fore  the 
horse  in  a  mamwr  unimraUeled  in  our  professional  ex- 
perience. 

That  said  learned  counsel  for  defendant-in-error  glibly 
dubs  tlie  plaintitf-in-error  an  '•incompetent  person''  long 
before  any  legal  proceedings  declaring  the  plaintiff-in- 
error  a  lunatic  or  an  inco)iiprlrnt  person  had  ever  been 
had.  And  this  in  the  teeth  of  the  aforesaid  remark  of 
said  learned  counsel  for  defendant-in-error — page  five  of 
his  said  brief  under  Point  I  thereof — to-wit :  ''the  pre- 
sumption of  sanity"  (until  judicially  found  insane — 
"lawfully  adjudicated"  as  said  learned  counsel  puts  it — 
page  five  of  his  saifl  brief)  "would,  no  doubt,  have  taken 
care  of  the  plaintiff -in-error  until  such  time  as  an  answer 
setting  up  the  defense  should  have  been  served."  The 
following  words  would  have  had  equal  force  in  said  sen- 
tence, to-wit.  "The  presumption  of  sanity"  (until  judi- 
cially found  insane) — "lawfully  adjudicated" — not 
fraudulenthj  lured  into  a  foreign  jurisdiction  we  might 
respectfully  add  "would,  no  doubt,  have  taken  care  of 
the  plaintiff-in-error  until  such  time  as  he  should  be  (as 
the  plaintitf-in-error  had  not  been)  judicially  found  in- 
sane 'lawfully  adjudicated'." 

The  "presumption  of  canity"  spoken  of  by  the  learned 
counsel  for  defendant-in-error  befoi'e  a  party  has  been 
"lawfully  adjudicated"  insane,  is  well  supported  by  the 
following  remark  from  the  learned  Judge  in  his  opinion 
in  Evans,  Committee  v.  Johnson,  ^W'st  Virginia  Supreme 
Court  of  Appeals  L.  R.  A.  737,  referred  to  extensively 
on  page  208,  of  this  brief.  The  learned  Judge  says 
"Will  it  be  said,  in  answer  to  this  that  he  is  insane, 
and  that  notice  to  an  insane  man  will  do  him  no  good? 
The  response  is  that  his  insanity  is  the  very  question 
to  he  tried." 

It  will  be  fully  shown  that  there  never  was,  nor  ever 
had  been  any  question  of  the  peace  and  quiet  of  the 


42^ 


uood  people  of  tlic^  ('ity  and  State  of  New  York  being 
threatened  by  an  irrnption  upon  the  part  of  the  plaintiff- 
in-error.  That — strange  though  it  may  sound  to  a  New 
Yorker — tlie  phiintiff-in-error  niucli  preferred  life  in 
Virginia  to  life  in  Ne\\'  Y'ork.  That  the  plaiutiif-in-error 
had  proved  this  by  relin(|uishing,  far  from  reluctantly, 
his  citizenship  in  the  State  of  New  York  and  promptly 
taking  it  up  in  the  State  of  Virginia  after  buying  the 
four  hundred  acre  estate  of  "The  Merry  Mills"  and  fit- 
ting u])  its  old-fashioned  house  as  his  permanent  home. 
That  plaintilT-in-error  found  life  in  Virginia  so  much  to 
his  liking  that  on  the  evidence  of  the  record  he  gave  life 
in  New  York  as  wide  a  berth  as  possible — only  going 
there  at  long  intervals  for  short  trips  and  with  a  specific 
purpose  as  the  object  of  each  trip — as  the  following  letter 
from  the  former  proprietor  of  the  hotel  at  wdiich  he  stop- 
ped Avhen  visiting  New  York  proves. 

"LETTER  TO  rLAINTIFF-IN-ERROR  FROM  THE 
PROPRIETOR  OF  THE  HOTEL  KENSINGTON, 
NEW  YORK  (SINCE  DECEASED)  CONCERN- 
ING HIS  INFREQUENT  VISITS  TO  THE 
HOTEL   (pp.  100-101  Trial  Brief). 

Cash  Capital,  |1,700,000. 
John  R.  Bland,  Geo.  R.  Callis, 

President.  Secretary-Treasurer. 

The  United   States  Fidelity   and   Guaranty   Company, 

Baltimore,  Md. 
Andrew  Freedman, 

Vice  President, 
Sylvester  J.  O'Sullivan, 
Manager. 
66  Liberty  Street,  New  Y^ork,  March  i4th,  1905. 
Mr.  John  Armstrong  Chanler, 

"The  Merrv  Mills,"  Coldiam,  Va. 


428 


My  Dear  dianler : 

111  reply  to  your  letter  recinesting-  my  views  regarding 
your  alleged  former  residence  at  the  Hotel  Kensing- 
ton, Fifth  avenue  and  Fifteenth  street,  Borough  of 
Manhattan,  Citj  of  New  York,  in  1806  and  1897,  I 
beg  to  state  as  follows : 

I  was  Proprietor  of  that  Hotel  from  April  1st,  1894, 
to  April,  1897.  I  do  not  think  you  ever  stopped  there 
prior  to  my  assuming  control  of  it.  I  do  believe  you 
came  there  solely  on  my  account.  You  never  were  in 
any  sense  a  resident  guest  of  that  Hotel.  You  never 
were  any  other  than  a  transient  guest.  You  never  en- 
gaged rooms  there  other  than  by  the  day.  Your  visits 
there  were  infrequent,  yet  I  believe  you  stopped  there 
every  time  you  came  to  New  York  while  I  conducted 
that  Hotel.  As  a  rule,  you  came  on  each  year  to  the 
Horse  Show,  and  on  those  visits  you,  of  course,  spent 
the  week  said  Show  was  in  progress,  and  I  believe  on 
one,  or  possibly  two  occasions,  your  visit  at  that  sea- 
son was  prolonged  to  several  weeks.  Other  than  the 
Horse  Show  week  mentioned  above,  my  recollection  is 
that  you  did  not  come  to  that  Hotel  more  than  once 
or  twice  a  year,  and  on  some  of  these  visits  your  stay 
was  only  for  a  day  or  two. 

I  well  remember  having  several  prolonged  conver- 
sations with  you  about  some  large  enterprises  you  had 
on  hand  in  North  Carolina,  and  that  almost  the  entire 
year  of  1895  was  spent  by  you  in  the  South  in  the  con- 
duct of  said  enterprises. 

Yon  were  at  the  Kensington  during  the  Horse  Show 
week  in  November,  1896,  and  left  there  for  the  South 
in  December.-]-     You  returned  again  in  FehruaryX  of 


fCorroborating  the  testimony  of  John  Penn  Morris.  Pp.  16-22, 
Appendix. 

tCorroborating  the  testimony  of  William  Kennie.  Pp.  57-64, 
Appendix. 


429 


1897,  and  left  in  March.  Of  course,  I  could  not  recol- 
lect the  exact  dates  of  your  arrival  and  departure  on 
those  visits,  but  1  aiiain  repeat  in  the  strongest  terms 
possible  that  yon  never  were  at  any  time  to  my  know- 
ledge a  resident  guest  of  that  Hotel,  but  were  always 
looked  upon  by  myself  and  all  the  attaches  of  the  Hotel 
as  a  transient  guest. 

Very  truly  yours, 

SYLVESTER  J.  O'SULLIVAK 

The  plaintiff-in-error  had  no  intention  whatever  of 
visiting  New  York  for  a  long  and  indefinite  period. 
That  plaintiff-in-error's  said  letter  to  Captain  Micajah 
Woods  proves  said  contention  where  he  mentions  his 
desire  for  a  prolonged  stay  in  Virginia  as  the  cause  of 
his  arranging'  his  l)nsiness  affairs  in  New  York  so  that 
he  could  l(?«ve  the  Metropolis  for  an  extended  and  in- 
definite period.  That  the  unscrupulous  relatives  of 
plaintiff-in-error  sent  out  to  have,  and  had  him  brought 
within  the  confines  of  the  State  of  New  Y^ork  for  an 
illegal,  dishonest  and  nefarious  purpose.  That  the 
peace  of  New  York  was  never  threatened  by  the  presence 
within  its  borders  of  plaintiff-in-error.  That  he  much 
preferred  to  live  in  peace  and  quietude  in  the  country- 
side of  Virginia  to  courting  the  noise  and  hubbub  of 
the  Metropolis.  That  all  this  talk  upon  the  part  of 
the  learned  counsel  for  defendant-in-error  to  the  effect 
that — page  8  of  his  said  brief — 'T7/e  State  itself  has  a 
vital  interest  in  the  proper  disposition  of  incoinpetent 
persons" — and  again  page  9,  ibid — "The  Court  can  not 
and  loill  not  shirk  the  dutji  irliicli  it  aires  the  whole 
public  of  determining  tvhether  or  not  the  person  in 
question  belongs  to  the  class  which  requires  supervi- 
sion'^ is  nothing  more  nor  less  than  so  much  sonorous 
buncombe  upon  the  part  of  the  learned  counsel  for  de- 
fendant-in-error. 


430 


All  this  talk  upon  the  part  of  the  learned  Counsel 
for  defendant-in-error  is  palpably  hollow — unequivo- 
cally insincere. 

We  respectfully  submit  that  in  place  of  all  this  absurd 
sophistical  elaboration  concerning  the  protection  of  the 
good  people  of  New  York  from  the  danger  of  the  pres- 
ence of  the  plaintiff-in-error  within  that  populous  State's 
borders,  it  would  be  far  more  germane  to  the  public 
good  to  protect  the  public  from  the  felonious  machina- 
tions of  people  as  utterly  devoid  of  scruple  or  principle, 
or  even  of  natural  affection  as  the  Chanler  family,  male 
and  female,  are  shown  to  be  in  the  premises;  to  protect 
the  public  from  the  machinations  of  people  so  rrsemhliiif/ 
hioidits  as  do  the  Chanler  family. 

Continuing,  the  learned  counsel  for  cU'f(Mi(lant-in-error 
says,  page  9,  rf  srq.,  of  said  l)rief  l)ef()re  the  Circuit  Court 
of  Appeals: 

POINT 

III. 

"THE  LEARNED  TRIAL  COURT  DID  NOT  ERR 
IN  EXCLUDINO  EVIDENCE  AS  TO  THE  RESI- 
DENCE OF  THE  PLAINTIFF  IN  1897  AND  1899. 

'The  rulings  excluding  evidence  of  this  character  were 
certainly  correct.  The  Supreme  Court  of  New  York  had 
jurisdiction  both  in  the  Commitment  Proceeding  and  in 
the  Proceedings  for  the  appointment  of  a  Committee, 
whether  the  plaintiff-in-error  was  a  resident  of  this 
State  or  not,  so  long  as  lie  was  within  the  State  when 
the  Proceedings  were  begun,  and  had  property  here. 

Finalh',  the  fact  that  the  plaintiff  was  a  resident  of 
New  York,  was  one  of  the  facts  at  issue  and  adjudged 


431 


in  the  1899  Proceedinos.  The  (luestiou  of  his  residence 
was  for  the  New  York  Court  to  determine,  and  its  deci- 
sion is  final  {Kiimici-  v.  Kuniicr,  15  N.  Y.  535)." 

We  need  not  go  further  into  the  first  allegation  of 
said  learned  counsel — we  respectfully  submit — than  to 
observe  that  the  Supreme  Court  of  New  l^ork  never  ac- 
quired jurisdiction  over  the  person  of  the  plaintiff-in- 
error  for  the  following  reasons.  First:  that  he  was  lured 
within  the  jurisdiction  of  the  State  of  New  York  by 
fraud,  deceit  and  trickery.  *S'eoo//(L'  that  lie  had  no 
notice  of  the  1897  Proceedings — the  Commitment  Pro- 
ceedings. Third:  that  he  was  not  afforded  an  opportunity 
to  appear  and  defend  at  the  1899  Proceedings — the 
SheritT's  Jurv  Proceedings. 

Nor  need  we  go  further  into  the  second  allegation  of 
said  learned  counsel — we  respectfully  submit — than  to 
observe  that  the  1899  Proceedings  aforesaid  alleged, 
never  hud  aiii/  existence  in  Jair  for  the  reason  aforesaid: 
— lack  of  ojipoi-tiiiiit!/  to  appear  and  defend — and  that 
therefore  no  question  thereat  determined,  had  any  exis- 
tence in  J<nr. 

Continuing,  the  learned  counsel  for  defendant-in-error 
says,  page  10,  et  seej.  of  his  said  brief  before  the  Circuit 
Court  of  Appeals: 

POINT 

IV. 

"THE  LEARNED  TRIAL  COURT  DID  NOT  ERR 
IN  EXCLUDING  ANY  OF  THE  EVIDENCE  OF- 
FERED TO  SHOW  FRAUD  IN  THE  VARIOUS  PRO- 
CEEDINOS RESULTING  IN  THE  ORDER  OF  CO:\[- 
:dITMENT  OF  1897  AND  THE  ADJUDICATION  OF 
INCOMPETENCY^  OF  1899. 


432 


*'Aii  exauiinatioii  of  the  otters  of  evidence  made  bj 
the  phiiiititt'-iu-eiTor,  the  questions  asked  and  excluded, 
and  indeed',  of  the  excluded  evidence  itself  as  it  ap- 
pears in  the  depositions  which  were  marked  for  identi- 
fication, will  show  that  the  alleged  fraud  complained  of 
consisted  in  the  givinii-  of  testimony  allegid  to  he  false,  in 
the  (iffidarits  upon  which  the  Commitment  was  had,  and 
in  the  evidence  upon  which  the  plaintiff  was  adjudged 
incompetent  in  1899.  The  alleged  conspiracy  appears  to 
hare  been  a  conspiracy  of  the  relatives  of  the  plaint iff-in- 
error  to  deceive  the  Court  by  such  perjury  into  deciding 
as  it  did  decide.  Such  fraud,  however,  if  proved  is  no 
hasis  for  a  collateral  attack  upon  an  adjudication.  The 
question  whether  the  testimony,  given  in  support  of  one 
side  of  the  case,  is  or  is  not  true  is  one  of  the  questions 
necessarily  adjudged  in  every  litigation.  In  the  case  at 
bar  the  (luestion  whether  the  alleged  perjurious  testi- 
mony was  true  was  necessarily  adjudged  by  the  Supreme 
Court  of  the  State  of  New  York  in  finding  the  plaintiff- 
in-error  incompetent.  This  Court  could  not  determine 
whether  or  not  the  testimony  in  question  was  perjured 
without  trving  over  again  the  ren/  same  issue  which 
the  New  York  Supreme  Court  decided  Avhen  it  made 
the  orders  complained  of.  In  accordance  with  these 
principles  it  is  well  settled  that  the  fact  that  a  .judgment 
is  procured  by  false  testimom^  does  not  open  it  to.  col- 
lateral attack." 

(Counsel  for  defendant-in-error  then  cites  U.  8.  V. 
Throckmorton,  98  U.  S.,  Gl,  and  says  the  said  case 
shows : ) 

"That  the  fraud  which  will  invalidate  a  judgment  or 
open  it  to  a  collateral  attack  must  be  extrinsic,  or  of 
such  a  character  as  prevents  the  party  defrauded  from 
presenting  his  case  or  some  essential  element  of  it  to  the 
Court.     None  of  the  offers  to  prove  in  the  case  at  bar 


433 


suii'uests  that  auY  fraud  of  tliis  charaoter  was  practiced 
upon  the  ])laiutiff-in-eiT()r.'' 

licplyiui''  to  wliicli,  we  respectfully  submit  tlic  follow- 
iiiij,'  coiicei-iiinii  tlie  case  of  (  .  ^.  \".  TJiroclmiorloii .  1)8 
U.  8. 

AVe  lia\e  more  than  once  been  forced  to  draw  this 
honourable  Court's  attention  to  the  proneness  to  sophis- 
try, so  brazenly  exploited  by  the  learned  counsel  for  de- 
fendaut-in-error.  It  would,  indeed,  be  difhcult  to  find 
more  ap])allini>ly  palpable,  brazen  sophistries  than  the 
followiui;  supra — so  pal])able  as  to  be  beneath  the 
notice  of  an  honest,  truthful  and  logical  lawyer — more 
than  to  held  them  forth  for  the  view  of  this  learned 
Coui't  in  all  their  nakedness.  To  wit.  ''The  question 
whether  the  testimony  given  in  support  of  one  side  of 
the  case  is  or  is  not  true  is  one  of  the  questions  neces- 
sarily adjudged  in  every  litigation.'" 

Among  the  present  group  of  fallacies  set  forth  with 
such  assurance  by  the  learned  counsel  for  defendant-in- 
error  the  above  is,  we  respectfully  submit,  surely  the  cap- 
tain jewel  in  the  carcenet.  For  if  what  said  learned 
counsel  for  defendant-in-error  asserts  above  were  not  a 
fallacy,  where  then  would  be  the  famous  case  of  Tovey 
V.  Yoiiiif/,  cited  by  the  learned  Mr.  Justice  Miller  in 
United  Htalcs  v.  TJii-ocl-inorfoii.  And  where  would  be 
the  learned  words  of  the  Lord  Keeper  in  the  High  Court 
of  Chancery? 

Accordiny  to  the  Lord  Keeper  perjury  can  slip  by  the 
Trial  diidf/r  unnoticed. 

Discussion  of  U.  *S.  v.  Throckmorton. 

Mr.  Justice  Miller  said : 

"There  is  no  question   of  the  general   doctrine  that 

(28) 


434 


fraud  vitiates  the  most  soleiiiii  eoutraets,  dociiiiients  aod 
even  judgments — in  cases  wliere,  by  reason  of  sometliing- 
done  by  the  successful   party  to  a  suit,  there  was,  in 
fact,  no  adversary  trial  or  decision  of  the  issue  in  the 
case.     Where  the  unsuccessful  party  has  been  prevented 
from  exhibiting  fully  his  case,  by  fraud  or  deception 
practised  on  him  by  his  opponent,  as  by  keeping  him 
away  from  Court,  a  false  promise  of  a  compromise;  or 
wliere  the  defendant  never  had  knowledge  of  the  suit, 
being  kept  in  ignorance  by  the  acts  of  the  plaintiff; — 
these,  and  similar  cases  Avhich  show  that  there  has  never 
been  a  real  contest  in  the  trial  or  hearing  of  the  case, 
are  reasons  for  which  a  new  suit  may  be  sustained  to  set 
aside  and  annul   the  former  judgment   or  decree,  and 
open  the  case  for  a  new  and  a  fair  hearing.     In  all  these 
cases  and  many  others  which  have  been  examined,  relief 
has  been  gi-anted,  on  the  grounds  that,  by  some  fraud 
practiced  directly  upon  the  party  seeking  relief  against 
the  judgment  or  decree,  that  party  has  been  prevented 
from  presenting  all  of  his  case  to  the  Court.     On  the 
other  hand,  the  doctrine  is  ecjually  well  settled  that  the 
Court  will  not  set  aside  a  judgment  because  it  was  found- 
ed on  a  fraudulent-  instrument,  or  perjured  evidence,  or 
for  any  matter  which  was  actually  presented  and  con- 
sidered in  the  judgment  assailed.    ]Mr.  Wells,  in  his  very 
useful   work  on    Ixr.s    Ad  judicata,    says.    Section    499: 
'Fraud  vitiates  everything,  and  a    judgment,    equally 
with  a  contract;  that  is,  a  judgment  obtained  directly 
by  fraud.     The  principle  and  the  distinction  here  taken 
was  laid  down  as  long  ago  as  the  year  1702  by  the  Lord 
Keeper  in  the  High  Court  of  Chancery,  in  the  case  of 
Tovey  v.   Yoiuhj,  Free,  in  Ch.  193.     This  was  a  bill  in 
Chancery  brought  by  an   unsuccessful   ])arty  to  a  suit 
at  law,  for  a  new  trial,  wJiicli  was  at  that  time  a  very 
common  mode  of  ohtaininu'  a   new   trial.      One  of  the 


435 


grounds  of  the  bill  was  that  coiuplainaiit  had  discovered 
Biiiee  the  trial  was  had,  that  the  principal  witness  against 
him  was  a  partner  in  interest  with  the  other  side. 

The  Lord  Keeper  said :  'New  matter  may,  in  some 
cases,  be  ground  for  relief;  but  it  must  not  be  what 
was  tried  before ;  nor,  when  it  consists  in  swearing  only, 
w  ill  T  ever  grant  a  new  trial,  unless  it  appears  by  deed, 
or  writing,  or  that  a  witness,  on  whose  testimony  the  ver- 
dict was  given,  were  convict  of  perjury.'  "  As  is  con- 
clusively proved  by  the  originator  of  the  said  principle 
— namely  the  Lord  Keeper  —the  perjury  of  a  witness  "on 
whose  testimony  the  verdict  was  given"  uinst  he  dis- 
covered and  charged  not  during,  but  after  the  said  trial. 

In  other  w^ords,  the  perjury  must  not  have  been  known 
to  be  perjury — and  as  perjury — to  have  been  considered 
by  the  court  during  said  trial.  The  perjured  witness — 
in  a  word — gives  his  perjured  testimony,  upon  which 
"the  verdict  was  given,"  without  either  the  Court  or  the 
other  side  knowing  at  the  time  of  the  trial  that  same  was 
perjured.  Thereafter  said  discovery  is  made  and  a  new 
trial  granted  on  the  strength  of  the  newly  discovered 
perjui'y. 

Counsel  for  defendant-in-error  attempts  to  show  by 
this  very  case  of  United  states  v.  Throclnnorton.  that 
provided  a  witness  has  perjured  himself  in  a  given  trial 
—and  no  matter  that  neither  the  other  side  nor  the  Court 
knew  at  the  time  of  said  trial  that  said  witness  was 
a  perjured  witness,  yet,  nevertheless,  because  the  witness 
gave  his  said  perjured  testimony,  as  aforesaid,  at  said 
trial,  that  therefore  the  question  of  the  perjury  of  said 
witness  was  ipso  facto  necessarily  "actually  presented 
and  considered^'  in  said  trial  as  perjurij!  Whereas,  the 
truth  is  the  direct  antithesis  thereof.  Namely:  that  said 
perjury,  not  liaring  J)rrn  discovered  at  the  time  of  said 
trial,  it  could  not  have  been  "presented"  at  said  trial. 


436 


Not  having-  been  "presented''  it*  necessarily  could  not 
have  been  ''considered" 

And  counsel  for  defendant-in-error  sapiently  holds 
that  although  neither  the  Court  nor  the  other  side  l-neiv 
at  the  time  of  said  trial  that  it  was  perjury;  that 
therefore  when — after  said  trial — a  new  trial  is  sought 
upon  the  ground — upon  the  total!  1/  new  question — of  the 
perjury  of  said  witness — that  a  new  trial  cannot  be 
granted  because  the  said  perjury — altlioiifjli  itiiJcnown 
and  unhintcd  at  at  said  trial — ''was  actually  presented 
and  considered''  at  said  trial;  when — in  truth — it  had 
been  neither  one  )ior  the  other! 

In  other  words — according  to  the  legal,  mental  pro- 
cesses of  counsel  for  defendant-in-error — if  a  perjured 
witness,  unhehnown  to  the  Court  and  other  side — per- 
jures himself  at  a  given  trial  and  ''gets  away  with  it" — 
gets  the  Court  and  other  side  to  believe  it,  that  therefore, 
thereafter,  when  the  other  side  catches  up  ivith  the  per- 
jurer, and  moves  for  a  new  trial — that,  because  the  per- 
jurer has — unbeMiown  to  the  Court  and  other  side — per- 
jured himself  successfully,  which  is  to  say,  of  course, 
without  being  caught, — that  then — according  to  counsel 
for  defendant-in-error — wheti  said  perjurer  is  "caught 
with  the  goods'' — his  crooked  and  slick  work,  when  dis- 
covered, cannot  be  taken  into  consideration  by  the  Court 
— cannot  be  ^'considered"  ! 

To  conclude.  The  perjury  of  ^Ir.  AA'inthro]j  Astor 
Chanler,  in  the  Commitment  Proceedings  in  1S97,  afore- 
said, is  proved  upon  him  in  the  cross-examination  of 
that  gentleman,  by  counsel  for  plaintiii-in-error  in  said 
Deposition  de  bene  esse,  supru,  given  by  said  gentleman 
in  or  about  November,  1905  —on  file  in  the  New  York 
Supreme  Court. 

Said  gentleman  swore  in  said  Commitment  Proceed- 
ings— said  Commitment  Papers — that  he  had  heard  and 


437 


seen  the  plaiiitiff-iii-error  in  Chaloner  against  Sherman 
say  and  do  irrational  tilings  at  the  said  plaintitf-in-error's 
home  in  Viroinia.  Upon  the  strength  of  which  false  oath 
''the  verdict  was  given,"  and  the  plaintiff-in-error  lost 
his  liberty  and  the  control  of,  and  enjoyment  of  his 
property  for  years  and  years.  Whereas  in  said  Proceed- 
ings in  1!)05,  dr  bene  esse — as  has  been  show^n, 
i^Hpra — said  gentleman  admitted  on  the  stand — under 
cross-examination — that  he  had  never  in  his  life  been 
at,  or  in,  said  home  of  said  plaintiff-in-error  in  Virginia 
— nor  had  aiiij  of  the  other  Petitioners! 

To  resume.  A  second  famous  fallacy  is  now  pushed 
forward  by  the  learned  counsel  for  defendant-in-error 
in  the  follomng  bare-faced  statement.  To  wit,  "This 
Court  could  not  determine  whether  or  not  the  testimony 
in  question  w^as  perjured  without  trying  over  again  the 
very  same  issue  which  the  New  York  Supreme  Court 
decided  when  it  made  the  orders  complained  of." 

And,  lastly,  we  have  this  pearl  from  the  lips  of  the 
learned  counsel  for  defendant-in-error.  To  wit,  "In  ac- 
cordance with  these  principles  it  is  well  settled  that  the 
fact  that  a  judgment  is  procured  by  false  testimony 
does  not  open  it  to  collateral  attack." 

And  then  said  learned  counsel  has  the  assurance — 
the  verily  desperate  hardihood — to  bring  forward  this 
very  case  of  United  states  v.  Throekmorton,  in  support 
of  said  learned  counsel's  outrageous  attempted  assault 
on  the  Truth  as  well  as  on  logic* 


*Mr.  Justice  Harlan  says : 

In  Arrowsmith  v,  Gleason,  129  U.  S.,  infra. 

"As  said  in  Barrow  v.  Hunton,  99  U.  S.,  80,  85  (25: 
407,  408),  the  character  of  the  case  is  always  open  to 
examination  'for  the  purpose  of  determining  Avhether, 
ration e  materiae  the  Courts  of  the  United  States  are  in- 


438 


Coutiniuiig  the  learned  counsel  for  defendant-in- 
error  says,  pages  11  and  12  of  his  said  brief: 

^'The  contention  that  the  plaintitf-in-error  was  fraudu- 
lently lured  into  the  State  of  New  York  in  1897  is  not 
of  this  character.  Such  fraud,  even  if  it  resulted  in  the 
commitment  of  the  plaintiff-in-error  to  an  asylum,  did 
not  deprive  him  of  the  power,  which  in  fact  he  had  in 
this  instance,  if  he  had  chosen  to  exercise  it,  of  pre- 
senting every  essential  of  his  case  to  the  court  Avhich 
adjudged  him  incompetent.  As  was  pointed  out  by  the 
Supreme  Court  of  the  United  States  in  Simon  v.  Craft, 
182  U.  S.,  427,  an  inmate  of  an  asylum  may  well  be 
perfectly  free  to  conduct  his  defense  in  such  proceed- 
ings with  entire  efficiency ;  and  in  the  absence  of  alle- 


competent  to  take  jurisdiction  thereof.  State  rules  on 
the  subject  cannot  deprive  tlion  of  vT."  *   *  * 

^"The  most  sole  in  )i  transactions  and  jndgments  may, 
at  the  instance  of  the  parties,  be  set  aside  or  rendered 
inopjerative  for  fraud.  *  *  *  It  is  generally  parties  that 
are  the  victims  of  fraud."  *   *  * 

""Relief  is  to  be  obtained  not  only  against  writings, 
deeds  and  the  most  solemn  assurances,  but  against  Judg- 
ments and  Decrees,  if  obtained  by  fraud  and  iniposition. 
*  *  *  Such  relief  l>eing  grounded  on  a  new  state  of  facts, 
disclosing  *   *   *   imposition   upon  a  Court  of  Justice/' 

And  in  Marshall  v.  Holmes,  Mr.  Justice  Harlan  said : 
141  IT.  S.,  infra: 

"On  the  other  hand,  if  the  Proceedings  are  tanta- 
mount to  a  bill  in  equity  to  set  aside  a  decree  for  fraud, 
in  the  obtaining  thereof,  then  they  constitute  an  original 
and  independent  Proceeding,  and  according  to  the  doc- 
trine laid  down  in  Gaines  v.  Fuentes,  92  U.  S.,  10  (23: 
524),  the  case  might  be  within  the  cognizance  of  the 
!\^deral  Courts." 


439 

(jafion,  proof,  or  oftVr  to  prorr  that  he  was  iiiterfenHl 
with,  the  Court  will  ])r('suine  that  he  was  not.  If,  then, 
thero  was  any  hirinu'  in  1S97,  it  did  not  aflVct.  the  1S9<) 
Proceediniis." 

The  hardihood  disi)layed  by  the  learned  counsel  for 
defendant-in-error  in  briniiinii  forward  a  case  so  indis- 
l)iital)ly  provinii  the  contentions  of  his  adversary;  name- 
ly, the  plaintiff-in-error,  as  U.  aS.  v.  Throckmorton,  is 
almost  equalled  by  said  learned  counsel  for  defendant- 
in-error's  i)uttino-  in  the  case  of  ^inwn  v.  Craft.  For 
nothiuii  could  sui)port  the  contentions  of  the  plaintitf-in- 
error  more  strongly  than  this  same  case  of  Simon  v. 
Craft — unless  it  be  the  aforesaid  case  of  United  States 
V.  Throckmorton. 

The  case  of  Simon  v.  Craft  is  again  brought  forward 
by  said  learned  counsel  for  defendant-in-error  in  sup- 
port of  said  counsel's  "Point  Y"  in  said  brief.  There- 
fore we  shall  touch  said  case  but  lightly  under  Point 
IV  of  said  counsel's  said  brief  and  treat  said  case  at 
length  in  replying  to  said  counsel's  "Point  V." 

Said  learned  counsel  for  defendant-in-error  starts 
out — we  respectfully  submit— with  two  fairly  large  fal- 
lacies where  he  says:  "The  contention  that  the  plain- 
tiff-in-error was  fraudulently  lured  into  the  State  of 
New  York  is  not  of  this  character."  To  which  we  re- 
spectfully submit  that  were  it  not  for  the  luring  there 
wonhl  liarc  hern  no  1897  Proceedings  at  all — for  the 
simple  reason  that  there  could  not  have  been — for  there 
would  have  been  no  plaintiff-in-error  to  be  falsely  im- 
prisoned and  perjured  into  "Bloomingdale"  had  the 
plaintiff-in-error  not  been  "fraudulently  lured"  as  said 
learned  counsel  for  defendant-in-error  deftly  phrases 
said  felonious  actions  of  his  allies  and  backers,  the 
Chanlers. 


440 

Contiiiniiii;-,  said  learned  counsel  for  defeiidant-in- 
error  says : 

''Such  fraud,  even  if  it  resulted  in  the  eonunitment 
of  the  plaintitT-in-eiTor  to  an  asylum,  did  not  deprive 
him  of  the  power,  which  in  fact  he  had  in  this  instance, 
if  he  had  chosen  to  exercise  it,  of  presenting-  every  essen- 
tial of  his  case  to  the  f'ourt  which  adjudged  him  incom- 
petent." 

Strange  though  it  sounds,  there  is  not  one  solitary 
word  of  truth  in  the  above  sonorous  sentence  from  the 
learned  counsel  for  defend ant-in-error.  As  will  be 
shown  when  we  come  to  consider  said  counsel's  next 
Point— "Point  V" — (1)  "Such  fraud — {did)  deprive 
him  of  the  power."  (2)  "Which  in  fact  he  had  (not) 
in  this  instance.  (3)  "(although)  he  had  chosen  to  ex- 
ercise it,  of  presenting  every  essential  of  his  case  to 
the  ('ourt  which  adjudged  him  incompetent." 

Merely  as  a  sign  of  bona  fides  upon  our  part  to  short- 
ly make  good  the  proof  of  the  aV)ove,  we  now  respect- 
fully submit  that  plaintiff-in-error  was  bed-ridden  at 
the  time  of  the  1809  Proceedings  on  the  testimony  of 
the  Medical  Superintendent  of  "Bloomingdale"— Dr. 
Samuel  B.  Lyon,  supra — had  been  so  for  three  weeks 
previous  to  the  said  Proceedings  Avhich  were  held  twen- 
ty miles  from  his  cell  in  "Bloomingdale" — and — lastly 
— that  plaintiff — on  the  record — was  neither  present  at, 
nor  represented  bg  counsel  at  said  Proceedings.  Where- 
as Mrs.  Yetta  Si)non — the  alleged  lunatic  in  Simon  \. 
Craft,  who,  by  the  Avay,  we  respectfully  submit,  was  on 
the  evidence  and  indisputably  a  bona  fide  lunatic  from 
the  incipiency  of  the  case  of  Simon  v.  (Jraft — was  repre- 
sented at  her  trial — by  a  guardian  ad  litem. 

(Concluding  his  "Point  IV"  the  learned  counsel  for 
dcfendant-in-error  sasvs,  "As  was  pointed  out  by  the 
Supreme  Court  of  the  United  States  in  Simon  v.  Craft, 


441 


182  U.  S.,  427,  ail  inmate  of  an  asyliuii  may  well  be 
perfectly  free  to  comlnct  liis  defcMiee  in  snch  Proceedings 
with  entire  efficiency;  and  in  the  absence  of  allegations, 
proof,  or  offer  to  prove,  that  Le  was  interfered  with,  the 
Conrt  will  ])resnme  that  he  was  not.  If  then  there  was 
any  hiring  in  1807,  it  did  not  affect  the  1891)  Proceed- 
ings." 

The  great  difference  between  the  case  of  fiimon  v. 
Craft  and  Chaloner  v.  >>iherman  is,  we  respectfully  sub- 
mit, summed  up  in  the  above  lines.  There  was  no  proof 
or  ojfer  to  prove  that  fraud  ivas  on  ployed  against  Mrs. 
Simon  at  any  stage  of  the  case.  Whereas  fraud  shows 
its  foul  head  from  the  very  incipiency  of  Chaloner  v. 
Sherman. 

There  iras  no  proof  or  offer  to  prore  that  Mrs.  Simon 
tras  not  insane  from  the  incipiency  of  Simon  v.  Craft. 
Whereas  indisputable  evidence — documentary — in  the 
shape  of  a  letter  of  several  thousand  words  in  length 
written  by  plaintiff-in-error  in  his  cell  within  about  one 
hundred  days  of  his  arrest  and  incarceration  in  "Bloom- 
ingdale"  to  his  late  counsel,  the  late  Captain  Micajah 
Woods,  Commonwealth's  Attorney  of  Albemarle  Coun- 
ty, Virginia — plaintiff-in-error's  home  county  at  said 
time — in  evidence  and  known  as  Exhibit  0 — roliereas  in- 
disputahle  eridence — documentary  and  otherwise — is  in 
evidence  in  Chaloner  against  Sherman  to  prove  the  un- 
impeachahle  sanity  of  the  plaintiff-in-error  from  his 
birth. 

There  was  no  proof  or  offer  to  prove  the  slightest  sign 
of  a  conspiracy  against  Mrs.  Simon.  Whereas  there  is 
indisputable  evidence— documentary — in  the  shape  of 
the  letters  of  June,  18S8,  from  members  of  the  Chanler 
family*  to  plaintift'-in-error  in  evidence  supra  pp.  417- 


*As  well  as    the    letter    from    said   Stanford   White   to   Princess 
Troubetzkoy,  indexed  in  Index  of  Exhibits,  Appendix,  as  Exhibit  C. 


442 


424,  of  this  brief,  breathing-  out  thveatenings  and  nuit- 
terings  of  trouble  to  come,  is  in  evidence  in  Chaloner  v. 
iSherfnmi. 

There  was  no  proof  or  oti'er  to  prove  the  slightest  ill- 
feeling  towards  Mrs.  Simon.  Whereas  indisputable  evi- 
dence— documentary — in  the  shape  of  the  alienation  in 
the  plaintif-in-errors  letter  aforesaid  to  Captain  Mica- 
jah  Woods  of  a  violent  altercation  with  Winthrop  Astor 
Chanler — tJic  Chief  Petitioner  in  the  1897  Proceedimjs — 
is  in  erifhnee  in  Chaloner  against  Sherman  to  prove 
that  not  a  restige,  shred  or  atom  of  natural  affection  ex- 
ists between  a  solitary  mcmlter  of  the  Chanler  family, 
male  or  female,  and  the  plaintiff -in-error.  That  all  and 
sundry  the  Chanler  family  dislike  the  plaintiff-in-error 
heartily,  and  lose  no  opportunity  to  show  said  dislike; 
and  that  the  sole  and  only  interest  said  Chanler  family 
take  in  plaintitT-in-error  is  a  strony  and  ever  present  de- 
sire to  circumvent  the  wishes  and  last  loill  and  testament 
of  the  plaintiff-in-error  in  order  to  cheat  the  Universities 
of  Viryinia  and  North  Carolina  out  of  the  fortune  of  a 
niillion  dollars  or  more  the  plaintiff-in-error  has  deeded, 
besides  leaving  in  his  will,  to  the  said  Universities. 

There  was  no  proof  nor  offer  to  prove  that  the  party 
or  parties  in  whose  custody  Mrs.  Simon  was,  was  or  were 
inimical  to  her.  Whereas  indisputable  evidence  is  in 
evidence  in  Chaloner  ayainst  Sherman,  that  the  Medical 
Staff  of  The  Society  of  The  New  York  Hos])ital  at 
"Bloomingdale,"  as  well  as  the  "Board  of  Governors"  of 
said  Private  Insane  Asylum  had  every  reason  to  feel 
chagrined  at  the  freely  uttered  threats  of  the  plaintiff- 
in-ei'ror  to  publicly  expose  them  and  their  methods  so 
soon  as  he  should  obtain  his  liberty. 

Lastly,  there  was  no  proof  nor  offer  to  pro  re  that  the 
party  or  parties  in  whose  custody  Mrs.  Simon  was,  tvas 
or  were  pecuniarily  interested  in  or  benefited  by  retain- 


443 


/////  her  in  ciisiod}/.  Whereas  iii<lis])utal»le  evidence — 
on  the  cover  of  the  ( 'oniniitnient  Papers  tlieniselves — 
shows  thai  the  proinictors  of  7'Jic  i^ocicty  of  Tlic  Neio 
York  Hospital  were  charf/in;/  t/ic  pl<iintiff-in-error  the 
outrageous  mulct  of  one  hundred  dollars  per  week  for  a 
two-roomed  cell  with  bath  attached — a  thirty  dollar  per 
month  or  so — Irish  keeper — while  charoinii  him  extra 
on  every  possible  pretext — and  he  a  ref/etariau  and  strict 
abstainer  from  all  alcoholic  beicraf/es.  While  the  mulct 
aforesaid  amounted — including  the  aforesaid  "extras" — 
to  the  formidable  sum  of  twentif  thousand  dollars,  more 
or  less,  at  the  end  of  the  nearly  four  years  the  plaintiff-in- 
error  was  illegally  and  falsely  imprisoned  in  The  Society 
of  The  New  York  Hospital  at  White  Plains,  Westchester 
Countv,  New  York. 

Continuing,  the  learned  counsel  for  defendant-in-error 
says,  pages  12,  13,  14  and  15  of  his  said  brief.  Since 
this  "Point  V"  of  said  learned  counsel  for  defendant- 
in-error's  brief  is  by  far  the  longest,  most  important  and 
most  elaborately  argued  point  in  his  brief,  we  shall  give 
said  point  verbatim  and  in  extenso. 

POINT 

"THE  LEARNED  TRIAL  COURT  DID  NOT  ERR 
IN  EXCLUDING  EVIDENCE  AS  TO  THE  PHYSI- 
(VVL  DISABILITY  OF  THE  PLAINTIFF  AT  THE 
TIME  OF  THE  1899  PROCEEDINGS. 

"The  contention,  set  up  in  the  Thirty-second  Assign- 
ment of  Error,  that  there  was  error  in  this  regard  is 
apparently  based  upon  the  exclusion  of  the  offers  of 
proof  by  counsel   for  the  plaintiff-in-error    ( pp.   57-60, 


444 

fols.  109-113).  These  offers  were  vastly  too  broad,  in- 
chidiug  matters  already  ruled  upon  and  others  which 
were  clearly  irrelevant  and  immaterial.  Assuming-,  how- 
ever, that  the  offer  and  assignment  raise  the  question  of 
the  correctness  of  the  ruling  excluding  an  offer  to  prove 
that  the  plaintiff-in-error  was  unable,  through  physi- 
cal disability,  to  attend  the  1899  Proceedings,  we  will 
discuss  the  question  on  that  basis. 

''It  is  to  be  noted  that  nowhere  in  the  Brief  or  in  the 
Record  is  it  questioned  that  th^  plaintiff-in-error  actually 
received  due  and  timely  notice  of  the  1899  Proceeding, 
as  appears  from  the  record  thereof,  which  is  in  evidence. 
The  argument  is,  however,  that  notice  is  insufficient  to 
confer  jurisdiction  unless  it  he  such  ast  win  afford  the 
recipient  an  opportanitij  to  defend,  and  the  notice  in  this 
case  was  vitiated  because  when  he  received  it  the  j)lain- 
tiff-in-error  was  confined  in  Bloomingdale,  was  physical- 
ly unahle  to  attend  the  trial,  and  was  thus  denied  his  op- 
portunity to  be  lieard.  As  above  noted,  however,  it  has 
been  expressly  decided  by  the  Supreme  Court  of  the 
T'nited  States,  that  confinement  in  an  asylum  does  not, 
bv  itself,  vitiate  a  notice  otlK^wise  dulv  served  in  such 
proceedings  (l^iniou  v.  Craft,  supra;  see  also  Woerner 
on  American  Law  of  (luardianship,  p.  401).  These  au- 
thorities demonstrate  that  tlie  mere  fact  of  detention 
in  any  asylum  upon  commitment,  at  the  time  notice  is 
served  and  the  Proceedings  had,  is  not  in  itself  sufficient 
to  show  that  the  notice  did  not  give  the  alleged  lunatic 
opportunity  to  be  heard.  They  show  that  in  the  absence 
of  evidence  the  Court  will  presume  that  opportunity  to 
defend  was  afforded. 

"Accordingly,  to  show  that  the  Supreme  Court  in 
the  1899  Proceeding  had  no  jurisdiction,  the  plaintiff'- 
iu-error  would  have  been  obliged  to  prove  that  oppor- 
tunity to  be  heard  was  denied  him,  otherwise  than  by 


445 

liis  iiKMV  enforced  i-esidence  in  Rl()oniiiis;d;ile.  The  only 
oifer  on  tliis  score  is  the  offer  to  x^i'ow  the  phiintiff-in- 
error's  physical  disability  at  the  time.  This  is  by  no 
means  sufificient.  If  physical  disability  to  attend  a  trial 
vitiates  notice,  how  many  of  the  judgments  rendered 
by  the  Courts  in  ordinary  civil  cases  would  be  open  to 
collateral  attack?  If  in  any  true  sense  an  alleged  lunatic 
who  is  ill  and  physically  unable  to  appear  when  the  case 
IS  called  for  trial  is  denied  opportunity  to  be  heard,  when 
the  Court  tried  the  case  without  him  every  other  litigant 
who  is  in  the  same  unfortunate  predicament  is  eqiialJif 
denied  opportunity  to  be  heard.  No  one,  however,  has  as 
yet  had  the  temerity  to  advance  this  proposition.  The 
plain  fact  is,  of  course,  that  one  who  is  physically  unable 
to  attend  a  trial  is  by  no  means  denied  an  opportunity  to 
be  heard  if  he  is  able  to  retain  and  consult  frrrli/  with 
counsel.  The  fact  that  the  plaintitf-in-error  in  this  case 
was  entirely  at  liberty  to  retain  and  consult  with  counsel 
appears  not  only  from  the  fact  that  he  wrote  long  and 
full  letters  to  at  least  one  of  his  counsel  (fol.  112.  Letter 
printed  as  Exhibit  (5  for  Identification,  fob.  305),  but 
also  from  the  testimony  in  the  1899  Proceeding  (fol. 
232),  which  shows  that  at  the  time  in  (luestion  he  was 
on  parole  and  at  liberty  to  go  where  he  pleased  within 
large  limits  (fol.  231). 

"Furthermore,  even  if  it  were  true  that  the  'oppor- 
tunity to  be  heard'  to  which  a  person  is  entitled  in  such 
cases,  is  an  opportunity  to  attend  in  person,  it  is  never- 
theless plain  that  that  opportunity  is  not  denied  a  party 
who  finds  himself  physically  unable  to  attend,  unless 
on  discovering  the  situation  he  asks  for  and  is  refused 
an  adjournment.  One  who  knows  that  his  trial  is  coming 
off  at  a  time  when  he  cannot  attend  and  lets  things 
proceed  without  even  asking  a  postponement  is  in  no 
position    to  complain.      There  is   no   suggestion   in   the 


446 


case  at  bar  tliat  the  plaintiff  e^eii  siigjiested  a  wish  (see 
fol.  225)  to  be  present  or  to  liave  the  trial  at  a  later 
day.  On  the  contrary,  it  appears  from  the  testimony  in 
the  181)!)  record  that  he  deliberately  and  of  his  own  ])ref- 
( ]-ence  ref nscMl  to  attend  ( fols.  225,  232  ) .  The  utmost 
extent  to  which  tlie  otfer  of  proof  went  was  to  proffer 
evidence  to  show  that  the  conditions  imposed  upon  the 
plaintiff-in-error  by  his  confinement  and  illness  may  have 
made  the  conduct  of  his  defense  inconvenient.  That  is 
by  no  means  sufficient.  The  Court  of  Appeals  of  New 
York  has  held  in  H(i/>i>i/  v.  Mother,  48  N.  Y.,  313,  that  a 
sufficient  opportunity  to  be  heard  was  afforded  by  pro- 
ceedings under  a  statute  whicli  made  the  giving  of  an 
expensive  bond  a  prerequisite  to  the  right  to  defend. 
In  deciding  this  case  the  Court  said  that  opportunity 
to  defend  is  not  denied,  though  made  'difficult,  so  long 
as  it  is  not  impracticahle/ 

''Moreover,  as  regards  this  subject,  this  Court  is  not 
in  the  usual  position  of  Appellate  Courts  when  consider- 
ing exclusion  of  evidence.  Ordinarily  it  has  to  be  pre- 
sumed that  the  excluded  evidence  would  have  shown  all 
that  the  offer  stated.  Here,  however,  the  excluded  evi- 
dence is  available,  if  the  Court  chooses  to  examine  it,  as  it 
apparently  consisted  wholly  in  depositions  covered  by  a 
stipulation  (p.  154).  From  the  plaintiff-in-error's  own 
testimony  in  his  colossal  deposition,  it  abundantly  ap- 
pears that  he  absented  himself  from  the  1899  hearing 
by  his  own  choice,  being  free  to  attend  and  to  consult 
counsel  (Plaintiff's  deposition,  Vol.  V,  pp.  122-142). 
The  passages  referred  to  seem  to  us  to  demonstrate  the 
fact  so  completely  that  no  amount  of  evidence  to  the 
contrary  could  convince  the  Court  that  the  phiintiff-in- 
error's  failure  to  appear  at  the  1899  hearing  was  because 
opportunity  to  be  heard  was  denied  hilii.  It  is  to  be 
remembered   tliat  the  i)laintiff  is  himself  a    lawyer,  to 


447 


whom,  if  sane,  the  importance  of  tlie  1809  Troceeding 
was  (lonl)tless  evident. 

•'Tlie  above  reasoninji  a})i)ears  to  cover  all  tlie  special 
assiannients  of  error  which  recinire  anv  notice.  A  num- 
ber  of  other  ([nestions  were,  however,  discnsyed  at  the 
trial,  and  to  meet  the  possibility  that  discussion  in  re- 
liard  to  them  may  lurk,  undetected  by  us,  somewhere 
concealed  in  the  vast  bulk  of  the  plaintitf-in-error"s  brief, 
we  feel  that  we  should  add  a  brief  discussion  of  ea(  h. 

"^Most  of  those  which  we  liave  not  specifically  discussed 
attack  only  renmrks  and  expressions  of  opinion  by  the 
('ourt,  which  wei-e  not  in  any  true  sense  rulings.  On 
s^uch  utterances  eri'or  cannot  be  assigned  {Gihson  v. 
L^/f/ier,  190  Fed.,  203)." 

A  still  further  reason  for  giving  defendant-in-error's 
""Point  A'"  above  is  that  it  contains  a  perfect  galaxy  of 
fallacies  and  sophistries,  whose  l^rilliancy  we  wouhl 
shrink  from  detracting  from,  by  SLibtracting  therefrom 
so  much  as  one  line. 

The  learned  counsel  for  defendant-in-error  says  above: 

"It  is  to  be  noted  that  itoirlicrc  in  the  Tirief  or  in 
the  Kecord  is  it  (piestioned  tliat  the  plaintiff-in-error 
actually  received  diie  aiuJ  tiiiicli/  notice  of  the  1899  Pro- 
ceeding, as  a])pears  from  the  record  thereof  ^^■hich  is  in 
evidence." 

The  cynical  audacity  of  the  above,  fights  hard  with 
its  soi)histry  for  the  mastery.  The  allies  <»f  the  learned 
counsel  for  defendant-in-error — the  C'hanlers — are  very 
<-areful — in  the  Commitment  Proceedings  of  1897 — as  the 
Commitment  Papers  show — to  deprive  tlu^  ])laintiff-in- 
error  of  what  the  learne<l  counsel  for  defendant-in-error 
sonorouslv  dubs  ''due  and  timelv  notice."  There  is 
neither  hint  nor  vestige  of  ''due  and  timely  notice"  when 
llie  plaintitf-in-error  is  in  a  physical  condition  to  avail 
himself  of  said  salutary  safeguard  of  the  la\\,  in  1897. 


448 


But  wIuMi — after  two  years  of  illei;al  imprisounieiit  ou 
a  purely  perjured  cliariie  of  insanity — the  plaintiff-in- 
error  lias  so  far  physieally— ho/  incntdlli/  hut  phijsicaJli/ 
succumbed  to  the  terrible  foree  ol'  his  euvirouineiit,  as 
to  be  temporarily  suffering  and  bed-ridden — wliy  then 
the  allies  of  the  learned  counsel  for  defendant-in-error 
make  considerable  capital — or  aim  to  at  least — out  of 
deigning  to  afford  the  plaintilf-in-error  "due  and  timely 
notice"  of  a  Proceeding — iiilciiiioiiallij  set  20  miles  away 
from  his  cell  in  ''Bloomingdale"  and  of  which  owing  to 
liis  physical  condition  he  could  not  avail  himself. 

Continuing,  the  learned  couns(^l  for  defendant-in-error 
says,  p.  13  of  his  Brief: 

"The  argument  is,  however,  that  notice  is  insufficient 
to  confer  jurisdiction,  unless  it  be  such  as  will  afford 
the  recipient  an  opportunity  to  defend,  and  the  notice 
in  this  case  was  ^  itiated  because  when  he  receiv(^d  it  the 
l>laintiff-in-error  was  contiiKHl  in  Blocuningdale,  was  phy- 
sicallv  unable  to  attend  the  trial,  and  was  thus  denied 
his  opportunity  to  be  heard.  As  above  noted,  however, 
it  has  been  expressly  decided  by  the  Supreme  Court  of 
the  United  States,  that  confinement  in  any  asylum  does 
not  by  itself  vitiate  a  notice  otherwise  duly  served  in 
such  proceeding  (Simon  v.  Craft,  supra:  see  also  Woer- 
ner  on  American  Law  of  Guardinnship,  p.  401).  These 
authorities  demonstrate  that  the  mere  fact  of  detention 
in  an  asylum  upon  commitment  at  the  time  notice  is 
served  and  the  Proceedings  had,  is  not  in  itself  sufficient 
to  show  that  the  notice  did  not  give  the  alleged  lunatic 
opportunity  to  be  heard.  They  show  that  in  the  absence 
of  evidence  the  Court  will  presume  that  opportunity  to 
defend  was  afforded." 

We  respectfully  submit  that  the  above  is  a  mere 
repetition  upon  the  learned  counsel  for  defendant-in- 
error's  part  of  what  he  said  under  "Point  IV"  supra. 


449 

Coiitiiuiiiiii,  the  leanuMl  counsel  foi-  (Icfciidimt-iii-eiTor 
says : 

''Accordiuiily,  to  show  that  the  Suin-ciiic  Court  in  the 
1891)  I*i-oc(MMlin,ii  had  no  jurisdiction,  llic  phiintitt'-in- 
error  wouhl  have  been  obliged  to  iH'ove  thai  o])])ortiinity 
to  he  licard  was  (U'nicd  him  otiierwise  tlian  by  liis  mere 
enf(U'ced  residence  in  Bh>ominii(lale.  The  only  otfer  on 
this  score  is  the  offer  to  prove  4he  plaint itT-in -error's 
]>hysical  disability  at  the  time."     *     *     * 

77/c  ahoiy  ist  one  of  the  most  crtrcnic  of  all  tlir  cr- 
roucoiis  st((ffiiieiit-s  iitlci-ed  hi/  the  Jctinivd  cindi-scl  for 
<lcfcn<J(ini-ni-crror.  To  wit.  ''The  only  offer  cm  this 
scoi-e  is  the  otter  to  prove  the  plaintiff-in-error's  physical 
disal)ility  at  the  time."  AVhereas  the  plain  truth  is— 
supi^orted  by  evidence  documentary — such  as  said  letter 
to  ('a])tain  :Micajah  NYoods — and  otherwise — that  the 
])laintitt-in-err(n-  \\as  marooned.  Was  as  completely 
shut  olf  from  contact  witli  or  communication  with  the 
outer  world — when  once  immured  in  the  cells  of  "Bloom- 
inadale" — as  tho'  in  the  howels  of  the  Bastile. 

He  inis  not  (illoircd  to  use  the  tclcpJioiic.  He  iras 
iiot  <illoirctl  to  xr//f/  citlicr  tetter  or  telec/ratH  until  each 
IhuJ  \)eeu  reuil  (IikI  (ii)i>ror<(l  hi]  tlie  (iiitJiorities  of 
^' Bloom  ill  (/(tale." 

ronse(iuently  it  was  a  physical  im])ossibility  for  the 
plaintiff-in-error  to  see  a  lawyer.  It  was  equally  an 
impossibility  for  the  ])laintiff-in-error  even  to  send  a 
lettei'  to  a  lawyei-  outside  the  rei^ular  channels  of  the 
mail — which  channels — as  aforesaid — were  barred  to 
plaintift'-in-erroi-"s  free  use — it  bcin;;  im])ossib1e  for  plain- 
titt'-in-error  to  send  a  letter  to  a  lawyer  with  a  view  to 
retainin,u  him  to  tii;ht  his  case,  unless  plaintiff-in-error 
ran  the  risk  of  liavinji-  the  said  letter  taken  to  the  said 
lawyer  by  a  false  and  treacherous  friend — by  wdiich  is 
meant  a    foi-mer  friend   of  plaintiff -iu-error  who  since 

(29) 


450 


his  incarceration  went  over — body  and  soul — to  the 
other  side — for  rcasoufi  and  causes  hest  l-iioirn  to  said 
false  friend — while  at  the  same  time  pretending  to  be 
the  same  staunch  and  loyal  friend  of  plaintiff -in-error 
that  plaintiff-in-error  had  formerly  supposed  said  false 
friend  to  be. 

Tliere  were  a  certain  number  of  said  traitors  who 
were  permitted  by  the  authorities  of  "Bloominodale" 
to  pass  throuj2,h  the  lines — to  borrow  a  military  phrase 
— for  obvious  reasons.  To  wit.  To  act  as  spies — in 
the  interest  if  not  also  in  the  actual  pai/ — of  the  Chanler 
family. 

Two  of  said  false  friends  were  the  late  Stanford 
White,  and  tJie  former  law  partner  in  New  York  City 
of  the  plaintiff-in-error,  namely  H.  Y.  IV.  Philip. 

This  false  friend  so  worked  upon  the  confidence  of 
plaintiff-in  error  that  he  entrusted  him  with  the  deliv- 
ery in  person — the  lioing  all  the  way  to  Charlottesville, 
Viriiinia — to  Captain  Micajah  Woods  aforesaid — of  the 
vitally  im])ortant  letter  aforesaid  from  plaintiff-in-error 
to  said  Woods,  written  July  3rd,  ]<S07.  Tlie  object  of 
said  Philip  being  to  set  said  Woods  ai>ainst  paying  any 
attention  to  the  prayer  for  help  of  the  plaintiff-in-error 
as  represented  by  said  long  letter.  Said  Philip  was 
eminently  successful.  Said  Philip  handed  said  letter  to 
said  Woods  with  the  following  unique  and  sole  com- 
ment. '^Do  nothinfi  in  tlie  pranises  without  first  con- 
sultinfi  me."^  This  so  alarmed  said  Woods  that  he  did 
absolutely  nothing  towards  granting  plaintiff-in-error\s 
said  prayer  in  said  letter  of  July  3d,  1897,  to  bring — in 
connection  with  the  late  XTnited  States  Senator  from 
Virginia,  John  Warwick  Daniel — habeas  corpus  pro- 
ceedings looking  to  the  plaintiff-in-error's  release  from 
captivity. 

The   following   excerpts — appendix — from    the    testi- 


451 


mony  of  said  Captain  Micajali  Woods,  at  the  first  Depo- 
sition of  plaintilf-in-error  in  October,  1908,  at  Char- 
lottesville, Virginia — at  which  Deposition  the  interests 
of  the  other  side  were  looked  after  by  the  learned  coun- 
sel for  defendant-in-error — supports  our  above  conten- 
tion, we  respectfully  submit,  that  said  letter  of  July  3rd, 
1897,  was  taken  personally  by  said  H.  Y,  N.  Philip  to 
said  Captain  Micajah  Woods. 

PLAINTIFF'S  LETTER  OF  JULY  3RD,  1897— RE- 
CEIVED IN  FALL  OF  1897. 

Testimony  of  Captain  Micajah  Woods. 

"13th  Q.  Ditl  you  receive  a  letter  from  the  plaintiff 
in  October,  1897? 

A.  I  think  that  was  about  the  time  I  received  a  let- 
ter.    I  don't  remember  the  exact  month. 

14th  Q.     How  did  you  get  this  letter? 

A.  The  letter  was  brought  to  me  by  a  New  York 
lawyer  by  the  name  of  Philip,  Mr.  Philip." 

Furthermore,  it  should  be  unnecessary  for  us  to  state 
—  we  respectfully  submit — that  the  professional  cau- 
tion of  a  practitioner  of  law  is  notorious. 

"Abundant  caution"  is  the  invisible  motto  emblaz- 
oned on  the  walls  of  everv  well  grounded  lawver's  cham- 
bers.  It  is,  therefore,  absurd  to  suppose  tliat  a  lawyer 
could,  by  any  possible  incentive — save  the  actual  pay- 
ment of  hard  cash,  in  advance,  and  in  hand — which  un- 
der the  circumstances  was  a  physical  impossibility  for 
the  rich,  but  unfortunately  situated  plaintiff-in-error — 
his  funds  being  in  the  hands  of  his  false  friend  Stanford 
White,  and  subsequently  in  those  of  said  false  friend's 
brother-in-law,  said  Prescott  Hall  Butler,  of  the  firm  of 


452 


Evarts,  Clioate  and  Sherman,  as  it  now  exists — it  is, 
therefore,  absurd  to  suppose,  we  respectfully  submit, 
that  a  lawA^er  iud)ued  with  the  paramount  caution  of 
his  profession,  would  for  one  moment — consider  taking 
the  case  of  the  unfortunately  situated  plaintift-iu-error 
who — heforv  paying  said  adventurous  and  daring  lawyer 
his  fee — must  have  his  case  iron  by  said  lawyer — when 
said  lairi/cr  iroiihJ  first  hare  Jiis  curs  pUed  h//  the  false 
as  alani)inf/  statcuiciits  of  the  eiiiissaries  of  fJic  ChanJer 
famili/  and  the  i^ocietij  of  The  Nen:  York  Hospital 
{"BlooniiiH/tJale")  to  the  unequivocal  effect  that  plain- 
titt-in-error  was  a  shrewd,  crafty,  highly  educated  luna- 
tic; who  appeared  normal  in  every  particular,  but  who 
was,  upon  the  authority  of  the  eminent  alienists  form- 
ing the  "Medical  t^tafe"  of  ''Bloomiugdale"— in  reality 
hopelessly — eren  danf/eron.sii/  insane.  We  respectfully 
submit  that  the  word  "dangerously"  would  insure  the 
average  lawyer's  giving  plaintilf-in-error's  case  a  fairly 
wide  berth. 

1(  is  therefore,  we  respectfully  submit,  as  false  as  ab- 
surd to  claim — as  does  the  learned  counsel  for  the  defen- 
dant-in-error^ — that:  "The  only  offer  on  this  score  (that 
opportunity  to  be  heard  was  denied  him)  is  the  offer 
to  prove  the  plaintiff-in-error's  physical  disability  at 
the  time." 

Continuing  the  learned  counsel  for  defendant-in-error 
says,  ])p.  1,')  and  14  of  his  said  brief: 

"This  is  ]>!/  no  means  sufficient.  If  ]dnjsical  disahilitjj 
to  attend  a  trial  vitiates  notice,  how  many  of  the  jndg- 
ments  rendered  by  the  courts  in  ordinary  eivil  cases 
would  be  open  to  collateral  attack?  If  in  any  true  sense 
an  alleged  lunatic  who  is  ill  and  physically  unable  to 
appear  when  the  case  is  called  for  trial  is  denied  oppor- 
tunity to  be  heard  when  the  Court  tried  the  case  tvith- 
out  him  ercrji  other  litigant  who  is  in  the  same  unfor- 


453 

tunate  predicament  is  e(|nallj  denied  opportunity  to  be 
heard.  No  one,  however,  has  as  yet  had  the  temerity 
to  advance  this  proposition." 

The  sophistry  and  falhicy  of  the  learned  counsel  for 
the  defendant-in-error  lierein  shines  resplendent.  Who 
ever  heard,  we  respectfully  submit,  of  a  sane  and  com- 
petent attorney's  comparino-  a  civil  case  with  a  criminal? 
A  case  coiicerninf/  hniactj  iv,  in  truth,  a  criminal  case 
in  effect.  Which  is  to  say  that  it  concerns  the  same 
elements  as  does  a  criminal  case;  namely,  the  physical 
liberty  and  control  of  the  property  of  the  accused.  It 
is,  therefore,  in  the  highest  degree  sophistical  and  fal- 
lacious to  attempt — as  does  the  learned  counsel  for  de- 
fendant-in-error— a  parallel  between  the  two. 

Furthermore.  In  his  said  claim  :  "If  physical  dis- 
ahility  to  attend  a  trial  vitiates  notice^  how  many  of  the 
judgments  rendered  by  the  courts  in  ordinary  civil  cases 
would  be  open  to  collateral  attack?  If  in  any  true 
sense  an  alleged  lunatic  who  is  ill  and  physically  unable 
to  appear  when  the  case  is  called  for  trial  is  denied  op- 
portunity to  be  heard  when  the  court  tried  the  case 
vithout  him,  every  other  litigant  who  is  in  the  same  un- 
fortunate predicament  is  equally  denied  opportunity 
to  be  heard.  No  one,  however,  has  as  yet  had  the  temer- 
ity to  advance  this  proposition."  As  in  his  aforesaid 
claim,  pp.  152-153,  in  his  aforesaid  Statement,  the 
learned  counsel  for  defendant-in-error  again  seeks  to 
confuse  the  Court  by  his  reference  to  procedure  in  ordi- 
nary civil  eases.  There  is  ahsolutely  no  requirement  ''in 
ordinary  civil  cases''  that  the  defendant  he  present  in 
Court.  He  may  be  present  or  absent  as  he  chooses,  or 
as  circumstances  permit,  and  the  validity  of  the  Pro- 
ceedings, and  of  the  judgment  rendered  are  nor  atfeitcd 
either  one  way  or  the  other.  • 

In  Lunacy  Proceedings,  hon-erer.  we  respectfully  sub- 


454 

mit,  the  practice  is  quite  different.  As  such  Proceed- 
iiif/s  involve  the  right  of  the  man  to  his  liberty,  the  policy 
of  the  Law,  and  generally  the  letter  of  the  Law,  con- 
templates and  requires  that  the  alleged  lunatic  be  per- 
sonally present,  although  the  statutes  quite  frequently 
provide  that  his  presence  may  be  dispensed  with. 

The  present  case  is  one  ichich  had  its  origin  in  fraud 
and  deception  practised  upon  both  the  alleged  lunatic 
and  the  Court.  That  fraud  and  deception  teas  continu- 
ous. By  means  of  it  the  falsely  alleged  lunatic  was 
placed  in,  and  confined  in  "Bloomingdale,"  a^id  was 
reduced  to  that  p)hysical  state  which  prevented  his  per- 
sonal presence  in  Court  during  the  1899  Proceedings. 
And,  therefore,  it  was  by  means  of  that  fraud  and  deceit 
that  he  teas  deprived  of  his  opportunity  to  be  heard  in 
the  said  1899  Proceedings,  before  the  Commission  and 
Sheriff's  Jury. 

The  parties  in  interest  in  opposition  to  plaintiff-in- 
error  tvere  the  same  throughout  the  Proceedings.  They 
were  guilty  of  the  fraud  under  which,  plaintiff-in-error, 
a  citizen  of  the  sovereign  State  of  Virginia,  was  in- 
duced to  leave  that  Commonwealth  and  go  to  New  York 
City  within  the  territorial  jurisdiction  of  the  Court, 
which  it  was  tlieir  intention  to  use  for  their  fraudulent 
purpose:  namely,  for  ylaintiff'-iu-errors  incarceration; 
and  for  tJir  stripping  of  phiiniiff-in-error  of  liis  prop- 
erly. They  continued  the  yraetiee  of  that  fraud  through 
the  various  stages  of  Procedure  under  the  Ncw>  York 
Lunacy  Law,  to,  and  including  the  hearing  before  the 
Commission  and  the  ^^hcriff's  .Jury:  ulien,  by  reason  of 
plaintiff-in-error' s  physical  disability,  brought  on  by 
their  fraudulent  acts,  it  urns  impossible  for  him  to  be 
present.  Fraud  practised  upon,  a  Court  which  is  eon- 
ducting  a  Hearing  in  Lunacy — that  fraud  being  for  the 
purpose   of   inducing   the   Court   to   dispense   with   the 


455 


personal  preseiue  of  the  alleged  lunatic  before  the  Jury, 
and  aciualhj  rcfiHltiufj  in  the  Court  so  dispensinoj  with 
his  i)resence — sJunild  be  held  by  this  learned  Court,  we 
respectfully  submit,  and  irill  be  held — we  confidently 
believe — on  the  authority  of  I'liited  States  versus 
TJiroch-iiioitoii,  siijira,  to  vitiate  the  entire  Proceedings. 

Said  learned  counsel  for  defendant-in-error  says: 
'*Tlie  only  offer  on  this  score  is  the  offer  to  prove  the 
plaintiff'-in-error's  physical  disability  at  the  time." 

But  this  is  not  the  only  offer.  This  is  only  said  learned 
counsel's  way  of  stating  to  the  Court  what  he  would 
have  the  Court  construe  to  be  the  only  off'er.  The  oft'er 
really  is  to  prove  the  plaintift-in-error's  physical  dis- 
ability at  the  time,  brought  on  hi/  Jiis  incarceration  in 
'"Blooniingdale/'  accomplished  hij  means  of  fraud  and, 
conspirac}/,  practised  not  only  upon  him,  hut  upon  every 
Judicial  Official  of  the  State  of  New  York  who  was  in 
any  manner  connected  u:ith  his  case. 

As  has  been  said  above — a  case  concerning  lunacy  is 
in  trutJi  a  criminal  case  in  effect. 

The  ett"(M't  is  identical — in  ])laintitt'-in-error's  case — 
with  a  conviction,  on  a  charjie,  of  murder  in  the  Second 
Degree— iiiV,iw\y,  total  deprivation  of  liberty  for  life; 
tottii  disfranchisement  for  life;  total  deprivation  of  the 
enjoyment'^  <nid  control  of  his  large  estate:  and — what 
is  ivorse  than  the  fate  of  a  murdercrr,  total  deprivation 
of  the  disposal  of  Jiis  properly  after  death. 


*Plaintiff-in-error  now  enjoys  an  "allowance"  of  twenty-four  thou- 
sand dollars  a  year — about  half  the  income — at  present,  of  his 
estate — which  is  constantly  increasing  in  value.  But  that  is  by 
virtue  of  two  things,  to  wit,  his  escape  from  capivity,  first:  secondly. 
by  the  grace  of  the  New  York  Supreme  Court.  For  while  in  "Bloom- 
ingdale"  so  far  from  having  an  allowance  of  twenty-four  thousand 
a  year,  plaintiff-in-error  did  not  enjoy  an  allowance  of  twenty-four 
vents  a  year — or  any  part  thereof.  Plaintiff-in-error  was  not — ac- 
cording to  the  rules  and  regulations  of  the  New  York  Hospital — 
allowed  as  much  as  five  cents  a  week  pocket  money  during  the 
four  years  he  was  there.  Nor  is  a  murderer,  serving  a  life-sentence, 
allowed  so  much  as  five  cents  a  week  pocket  money. 


45fi 


The  Law  regards  the  siihstaurr — not  the  shadow  of 
thin(/s.  If  we  are  correct  in  said  deduction  what — we 
respectfully  submit — under  tlie  Heavens — coahl  he  more 
closely  analogous  to  a  criminal  cJiart/e  in  its  substance 
— in  its  effect — tJian  a)t  J nsaniti/  chtiri/e! 

Our  three  authorities — upon  which  we  base  said  dis- 
cussion upon  the  nature  and  history  of  Lunacy  Legis- 
lation from  the  year  one  thousand  to  date — are  Black- 
stone's  Commentaries,  Renton — the  prominent  English 
authority,  author  of  "The  Law  of  and  Practice  in  Lun- 
acy"— an<l  the  Constitution  of  the  United  States,  as  well 
as  the  Constitutions  of  the  4S  States  and  Territories  of 
the  United  States. 

We  iind  the  earliest  Statute  on  the  subject  in  England 
to  be  the  "Statute  De  Praerof/atira  Regis,  17  Edw.  II 
St.  1,  A.  1).  1:5l>4.  (^i])s  IX  AND  X"  Trial  Brief,  p.  245. 
And  that  the  i)ractice  from  tiiat  day  for  centuries — up 
to  1754 — was  as  follows:  "A  petition  to  the  Lord  Chan- 
cellor suggesting  idiocy  or  lunacy  in  a  ]>articular  per- 
son of  competent  jige  and  verified  by  affidavit  of  facts 
to  issue  a  writ  to  the  Sheriff  or  Escheator  of  the  county 
where  liis  residoice  was,  to  try  by  a  jury  and  personal 
emiinination  of  the  ])arty  whether  that  suggestion  was 
true  or  not." 

Here,  we  res]K'ctfully  submit,  from  tlic  dimmest  anti- 
quity of  the  Common  Law  we  tind  the  hall  mark  of 
Criminal  IM-ocedure  branding  Lunacy  Procedure.  We 
find  first :  the  Sheriff  or  Escheator — the  latter  the  offi- 
cer who  looked  after  escheats — or  land  forfeited  to  the 
Kinu  bv  T-ebellion.  The  Sheriff — a  strictlv  criminal 
officer- — the  Escheator  a  Politico-Criminal  officer.  We 
find  ne.rt:  the  birth-right  of  all  Englishmen,  the  most 
priceless  of  their  political  possessions,  trial  by  jury.  We 
find  lastly:  trials  non  in  (ihsentia:  not  as  was  ]>laintiff- 
in-error's,  but  trijils  face  to  face — confronted  bv  his  ac- 


457 

ciisers.  And  who  (ir<'  liis  lU-ciissfTs?  Men  in  a  jon'Kjn 
State — as  was  the  Sheriff's  Jury  in  the  1S90  Prooeed- 
ings.  Not — his  own  neighbors — in  "the  eonnty  where 
his  residence  was"  like  the  cloud  of  witnesses  to  plain- 
tiff-in-error's  sanity  in  the  Virginia  Proceedings  of  Nov- 
ember 6,  1901;  and  in  the  Deposition  at  Charlottesville, 
Virginia  in  11)08* 

At  this  point  it  is  necessary  to  point  out,  we  respect- 
fully submit,  that  it  is  a  mistaken  notion  of  the  origin  of 
the  Law  of  Lunacy  to  suppose— as  some  New^  York  State 
decisions  hold — that  the  jurisdiction  of  the  Lord  Chan- 
cellor over  persons  of  unsound  mind  in  England  was 
in  its  origin  a  Chancery  or  Equitable  Jurisdiction,  such 
as  the  jurisdiction  over  married  women,  for  it  was  origin- 
ally in  the  King  as  pater  patriae,  one  of  whose  preroga- 
lives  it  was  to  guard  lunatics,  idiots,  etc.,  and  take  care 
of  their  lands. 

Although  there  are  several  New  York  decisions  hold- 
ing  that  procedure  in  lunacy  cases,  being  derived  from 
the  Court  of  Chancery,  is  within  the  power  of  the  Su- 
preme Court  of  that  State  to  modify  at  its  pleasure, 
without  constitutional  or  common  law  restrictions  as 
to  notice,  trial  by  jury,  etc.,  these  cases  proceed  upon 
a  mistaken  notion  of  the  English  law  at  the  time  of 
the  adoption  of  the  New  York  State  and  Federal  Con- 
stitutions. 

The  accompanying  authorities  show  the  following  to 
be  the  case.  The  jurisdiction  of  the  Chancellor  over 
persons  of  unsound  mind  in  England  was  not  in  its 
origin  a  chancery  or  equitable  jurisdiction  such  as  the 
jurisdiction  over  married  women,  but  was  originally  in 
the  king  as  pater  patriae,  one  of  whose  prerogatives  it 
was  to  guard  lunatics,  idiots,  etc.,  and  take  care  of  their 
lands. 


*Appenclix,    pp.    1-120,   inclusive. 


458 

Statute 

De  Praerogativa  Regis  17  Edw.  TI.  st.  I.,  A.  D.  1324. 

Caps   IX   and   X. 

Cap  IX. 

(Couceruing  idiots.) 

'The  King  shall  have  the  onstodv  of  the  lauds  of  na- 
tural fools"  (idiots)  ''taking  the  profits  of  them  with- 
out waste  or  destruction,  and  shall  find  them  their  neces- 
saries, of  whose  fee  soever  the  lands  be  holden.  And 
after  the  death  of  such  idiots  he  shall  render  them  to 
the  right  heirs ;  so  that  bv  such  idiots  no  alienation  shall 
be  made,  nor  shall  their  heirs  ])e  disinherited." 

Cap  X. 

{ Concerning   lunatics. ) 

"Also,  the  King  shall  provide  when  any  ( that  before- 
time  hath  had  his  wit  and  memory)  happen  to  fail  of 
his  wit,  as  there  are  many  lu^ving  lucid  intervals,  that 
their  lands  and  tenements  shall  be  safely  kept  without 
waste  and  destruction,  and  that  thev  and  their  house- 
hold  shall  live  and  be  maintained  competently  from  the 
issues  of  the  same;  and  the  residue  beyond  their  reason- 
able sustentation  shall  be  kept  to  their  use,  to  be  de- 
livered unto  them  when  they  recover  their  right  mind ; 
so  that  such  lands  and  tenements  shall  in  no  wise  with- 
in the  time  aforesaid  be  aliened ;  nor  shall  the  King 
take  anything  to  his  own  use.  And  if  the  party  die  in 
such  estate,  then  the  residue  shall  be  distrilnited  for  his 
soul  bv  the  advice  of  the  ordinarv." 


459 


This  prerogative  was  exercised  by  the  King  through 
his  chaiU'(4lor,  not  qua  Chaiicenor,  hut  merely  as  a  miuis- 
terial  officer  or  agent.  The  right  and  duty  to  act  for 
the  King  could  have  been  delegated  to  any  other  Crown 
officer. 

The  royal  prerogative  in  regard  to  lunatics  wight 
he  delegated  to  other  great  officers  of  State,  4  Bro.  C.  C. 
233.  An  instance  is  recorded  of  the  warrant  having 
been  given  to  the  Lord  High  Treasurer^  2  Dick.  553. 

The  true  source  of  the  Chancellor's  power  in  cases  of 
lunacy,  idiocy,  etc.,  is  always  recognized  by  the  English 
courts,  is  iiientioned  by  Blackstone,  and  was  applied  in 
Sherwood  v.  Sanderson,  19  Ve&.  Jr.,  280. 

Lord  P:idon,  Chancellor  (18-5)  at  p.  285  said:  ''This 
application  (for  costs  made  by  the  petitioners  in  an 
unsuccessful  proceeding  to  declare  Kitty  Sherwood  luna- 
tic )  considered  first  as  made  in  the  lunacy  alone  is  made 
to  the  Lord  Chancellor  not  as  Chancellor,  but  as  the 
person  having  under  the  special  ivarrant  of  the  crown 
the  right  to  exercise  the  duty  of  the  crown  to  take  care 
of  those  who  cannot  take  care  of  themselves.  The  ap- 
plication  has  therefore  no  concern  with  anything  pass- 
ing in  the  Court  of  Chancery,  hut  is  made  to  the  person 
holding  the  Great  Seal,  to  whom  the  Crown  has  usually 
thought  i)roper  to  vest  this  jurisdiction,  as  it  would 
he  made  to  any  other  person  having  that  authority/'' 

The  Lord  Chancellor  "or  Lord  Keeper  ( whose  au- 
thority by  statute  5  Eliz.  Ch.  \S,  is  declared  to  be  exactly 
the  same)  is  with  us  at  this  day  created  by  the  mere 
delivery  of  the  King's  Great  Seal  into  his  custody  *  *  * 
is  the  general  guardian  of  all  infants,  idiots  and  luna- 
tics; and  has  the  general  superintendence  of  all  charit- 
able uses  in  the  kingdom.  And  all  this  orer  and  above 
the  vast  and  extensive  jurisdiction  which  he  exercises 
in  his  judicial  capacity  in  the  court  of  chancery ;  where- 


460 


in,  as  in  the  exchequer,  there  are  two  distinct  tribunals; 
the  one  ordinary,  beini;-  a  court  of  common  law ;  the 
other  extraordinary,  beinii'  a  court  of  equity  *  *  *  in 
this  ordinary,  or  lei^al,  court  is  also  kept  the  officina 
justifiae  out  of  \yhich  all  original  writs  that  pass  under 
the  j>reat  seal,  all  commissions  of  *  *  *  bankruptcy, 
idiocy,  lunacy  and  the  like  do  issiie." 

Bl.  Comm.  Bk.  III.  Chap.  III.  pp.  641,  642. 

In  a  note  to  E.r  Parte  Ogle,  15  Ves.  Jr.,  112,  the  re- 
porter refers  to  the  Lord  Chancellor  sitting  in  lunacy 
as  "the  great  officer  who  administers  this  branch  of  the 
Crown's  prerogatiye. " 

From  time  immemorial  it  was  held  in  England  that 
the  King,  and  a  fortiori,  his  Chancellor,  had  no  power 
to  seize  the  lands  or  person  of  a  lunatic  or  idiot  with- 
out previous  adjudication  of  the  fact  of  idiocy  or  lunacy 
through  the  verdict  of  a  jura  founded  on  personal  ex- 
ami  nation. 

'The  Crown  as  parens  jurtriae  has  by  virtue  of  its  pre- 
rogatiye the  care  and  custody  of  the  person  and  estate 
of  those  of  non  sane  memory  and  Ayho,  from  want  of 
understanding  are  incapable  of  taking  care  of  them- 
selyes.  This  royal  preroyatire  seems  to  have  existed 
anterior  to  ihe  statute  of  17  Ed.  II.,  called  Urer., 
Regis. ^  which  is  declaratory  only ;  the  date  of  its  origin 
is  not  easy  at  this  remote  period  to  ascertain  with  cer- 
tainty. It  is,  howerer,  a  right  which  is  never  exercised 
hut  upon  a  previous  rjifice  {or  Inquisition)  found." 
Elmer,  Pr.  in  Lun.  |».  1  and  author,  cit. 

In  Loi'd  Ely's  Case,  I  Ridgw.  Pari.  Ca.  515  (1764), 
the  Court  charging  the  jury  empaneled  in  a  commission 
de  lunatico  said : 

"In  order  to  come  at  this  jiroof    (re(|uired  to  rebut 


461 


tJie  U'fjal  /nc.siiiHpfioH  of  saniti/)  the  priK'tice  in  former 
times  was  on  a  petition  to  the  Lord  Chancellor  sug- 
gesting; idiocy  or  Innacy  in  a  particular  person  of  com- 
petent age  and  verified  by  affidavits  of  facts  to  issue  a 
writ  to  the  sheriff  or  Escheator  of  the  county  where  his 
residence  was,  to  try  by  a  jury  and  personal  e.immina- 
tioii  of  the  party  whether  that  suggestion  was  true  or 
not.  The  practice  of  latter  years  has  been  to  try  these 
matters  under  such  a  special  commission  as  this  upon 
which  you  have  been  sworn/'     (Pp.  520-1.) 

In  1751,  the  Chancellor  said : 

''The  old  way  was  bv  writs  directed  either  to  the 
Escheator  or  the  vSheritf;  the  modern  way,  and  for  a 
lonii'  time,  is  bv  commissions  in  the  nature  of  these 
writs;  and  so  it  is  called  a  writ  de  Iiinatico  inquirendor 

Ex  parte  Soiithcof,  2  Yes.  Sen.  401. 

At  the  common  law  and  down  to  the  act  of  1833  (3 
i  4  William  IV,  V.  36)  the  English  lunacy  practice 
was  as  follows : 

"The  question  whether  a  person  was  idiot  or  lunatic 
was  determined  either  by  writ  or  by  commission.  The 
former  procedure  which  was  the  more  ancient,  con- 
sisted in  the  issue  of  a  writ  lo  the  Sheriff  or  Escheator 
of  the  eoiiiifj/  where  the  alleged  idiot  or  lunatic  resided: 
to  try  hjj  a  jiiri/  and  personal  e.ramination  of  the  party 
whether  he  was  idiot  or  lunatic  or  not.  The  writ  was 
issued  by  the  Lord  Chancellor  on  a  petition  suggesting 
idiocv  or  lunacv,  and  verified  bv  affidavits  of  facts,  and 
was  returnable  into  the  Court  of  Chancery,  and  any 
person  found  idiot  or  lunatic  in  this  way  had  a  right  of 
appeal  to  the  Court  of  Chancery  or  the  King  in  Council. 

"In  the  course  of  time  the  second  mode  of  inquiry 
above  referred  to  superseded  the  first.  Commissions 
were  issued  by  letters  patent  under  the  Great  Seal  from 


462 


the  coinmon  law  side  of  the  Court  of  Chancery,  directed 
to  five  persons  as  commissioners,  who,  or  any  three  or 
more  of  them,  were  to  inquire  upon  the  oaths  of  good 
and  lawful  men  of  the  count ij,  whether  the  party  named 
in  the  commission  was  idiot  or  lunatic  or  not,  and  as  to 
the  extent  or  value  of  his  property.  The  commissioners 
held  their  inquiry  generally  in  or  near  the  place  of  abode 
of  the  supposed  idiot  or  lunatic;  the  inquisition,  which 
was  required  to  be  made  by  indenture,  and  sealed  with 
the  seals  of  twelve  jurymen,  was  returned  into  Chan- 
cery, with  the  commission,  within  a  month  after  it  was 
taken;  and  thereafter,  if  the  verdict  was  one  of  idiocy 
or  lunacy,  the  Lord  Chancellor  referred  to  one  of  the 
ordinary  Masters  in  Chancery  the  matter  of  the  lunacy, 
and  in  particular  the  duty  of  ascertaining  and  reporting 
upon  the  property  and  next-of-kin  or  heirs-at-law  of 
the  person  so  found  by  inquisition — questions  which 
although  included  in  the  commission  were  not,  in  later 
practice  at  any  rate,  investigated  by  the  Commissioners 
or  their  jury." 

Renton.  "The  Law  of  and  Practice  in  Lunacy,  pp. 
329-330.      (London  1896.) 

\ 

Matter  of  Runey  Dey,  alleged  to  be  a  lunatic,  9  N.  J. 
Eq. 

Rep.  181  (1852).     Chancellor  Benj.  Williamson  said: 

''No  person  can  be  deprived  of  the  right  to  manage 
his  OAvn  affairs  or  of  his  personal  liberty  without  the 
intervention  of  a  jury,  and  in  cases  of  lunacy  the  verdict 
of  the  jury  is  to  be  founded,  as  in  all  other  cases,  upon 
satisfactory  and  unexceptionable  evidence  submitted  to 
their  consideration." 

The  verdict  of  the  jiiry  in  such  cases,  unlike  a  verdict 
on  feigned  issues  framed  hy  a  Chancellor  in  an  equity 
suit,   was  held  conclusive  on  the  Chancellor,  and  did 


463 


not  mercUj  Herrc  to  hifonn  his  conscience.  If  the  jury 
decided  in  favor  of  sanity,  the  (liaiicrUor  had  no  poiver 
to  act  further,  and  the  rerdict  related  hack  and  an- 
nulled Jiis  previous  proceediujis.  //  the  jury  found 
the  alleged  incompetent  insane,  it  was  a  matter  of  abso- 
lute rif/ht  on  tlie  latter  s  part  to  traverse  the  return  and 
have  the  issue  tried  the  second  time. 

A  trarerse  to  the  return  to  an  jnquisiHon  findinf/  a 
person  lunatic  is  a  right  by  law,  even  though  the  Chan- 
cellor is  satisfied: 

Et  parte  Wragg'  &  Ed-  parte  Feme,  5  Ves.  Jr.  450. 

"The  traverse  is  de  jure.  It  is  no  favor.  The  parties 
apply  by  petition,  stating  that  they  are  dissatisfied  with 
the  finding;  and  that  stops  the  commission." 

Per  Loughborough,  Ch. 

Ew  parte  Feme,  5  Yes.  832. 

In  re  Farrell,  6  Dick,  Ch.,  (N.  J.)  353.  (51  N.  Y. 
Eq.,  353. )     2  &  3  Edw.,  YI.  c.  3  &  6. 

(1815)   ^hcru-ood  v.  Sanderson,  19  Yesey  Jr.,  280. 

"It  is  remembered  that  originally  the  King  as  parens 
patriae,  liad  custody  of  idiots  and  lunatics  and  their 
property  *  *  *  and  that  it  was  his  habit  to  com- 
mit such  persons  and  property  to  the  care  of  commit- 
tees. 

"Later,  to  avoid  solicitations  and  the  shadow  of  undue 
partiality  in  the  bestowal  of  sucli  offices,  lie  became  accus- 
tomed bv  warrant  under  his  roval  sign  manual  to  dele- 
gate  his  power  in  such  matters  to  the  Chancellor  who 
was  the  keeper  of  the  Great  Seal  under  which  grant,  by 
letters  patent,  to  the  committee  was  made. 

"It  became  the  practice  of  the  Chancellor  first  to  in- 


464 


quire  into  the  idioey  or  lunaey,  aud  to  that  end  to  issue 
a  coniniission  under  the  Great  Seal  directed  to  persons 
as  commissioners,  who  were  to  inquire  throiujh  a  jury 
as  to  the  matter  <»iven  them  in  charge  bv  the  commis- 
sion;  and  after  a  return  to  the  commission,  linding 
idiocy  or  uusouudness  of  mind,  as  the  case  might  be,  and 
trial  of  a  traverse  of  the  inquisition,  if  the  subject  of 
the  iu<|uisition  should  possess  sufficient  intelligence  to 
M'ish  to  traverse,  to  proceed  to  grant  the  custody  of 
the  person  and  the  property  of  the  idiot  or  lunatic  to  a 
committee.'' 

(Per  Chancellor  McCUll,  1893.) 

Ill  re  Famuli,  supra,  at  ]).  358. 

If  the  second  jury  found  him  sane,  the  proceedings 
theretofore  taken  were  annulled,  and  the  Chancellor  had 
no  power  to  award  costs  out  of  the  alleged  incompetent's 
estate,  having  no  jurisdiction  irhatever  OA^er  it. 

Hlirr wood  v.  i^andcrsou,  supra. 

In  tlie  matter  of  Clapp,  20  How.  Pr.  385,  held,  if  the 
ijKluisitiou  finds  the  alleged  lunatic  sane,  the  Court 
has  never  acquired  jurisdiction  to  charge  the  expenses 
on  liis  estate.  "'But  after  a  junj  has  passed  upon  the 
question  and  found  the  alleged  lunatic  of  unsound  mind, 
the  Court  upon  confirming  the  inquisition  acquires  com- 
plete jurisdiction  over  tlie  lunatic  and  his  property." 
(P.  889.) 

(Per  E.  D.  Smith,  J.,  1861.) 

77/r  onlji  instance  in  irliich  I  lie  (liauccJior  could  take 
charge  of  persons  alleged  to  he  incompetent  before  the 
qucstio})  of  their  competency  had  been  determined  by 
the  verdict  of  a  jury,  was  where  such  care  was  necessary 
to  preserve  the  person  of  the  incompetent  or  the  public 


465 


peaco,  (ukI  in  this  case  it  iras  an  extraordinary  exer- 
cise of  irhat  u'c  here  call  the  police  power,  and  limited 
to  its  precise  and  narroio  end  of  preserving  the  person 
of  the  incompetent  or  the  safety  of  the  pnhlic.  The  in- 
terference must  he  temporary,  pendinf/  the  execution 
of  a  commission. 

Temporary  Commitment  Pending  Inquest. 

"^Aliilc  tlie  rule  is  fully  reco_i>nized  that  the  Chan- 
cellor can  not  permanently  assume  the  custody  of  a  sup- 
posed lunatic's  person  or  estate  without  the  verdict  of 
a  jury,  yet  it  has  been  held  that  he  may  temporarily 
interfere  and  take  care  of  persons  as  to  whom  a  commis- 
sion has  been  allowed,  until  the  jurji  have  passed  upon 
the  case." 

Barb.  Oh.  Pr.  Bk.  V,  Chap.  6  (Vol.  2,  p.  240.) 

Com:\iitment  Only  for  Safe  Custody  While  Awaiting 

Trial  by  Jury. 

"When  a  deliu({uent  is  arrested  *  *  *  i^^  ought 
regularly  to  be  carried  before  a  justice  of  the  peace 
*  *  *  The  justice  before  whom  such  prisoner  is 
brought  is  bound  immediately  to  examine  the  circum- 
stances of  the  crime  alleged;  and  to  this  end  by  statute 
2  &  3  Ph.  &  M. ;  ch.  10,  he  is  to  take  in  writing  the  ex- 
amination of  such  prisoner,  and  the  infornuitiou  of 
those  who  lu'iug  him ;  which  Mr.  Lambard  observes, 
was  the  first  warrant  given  for  the  examination  of  a 
felon  in  the  English  Law.  For  at  the  common  law 
nemo  teuehatur  prodere  seipsum  ;  and  his  fault  was  not 
to  be  wrung  out  of  himself,  but  rather  to  be  discovered 
by  other  means  and  other  men.  If  u]ion  this  inquiry  it 
manifestly  a])pears  that  either  no  such  crime  Avas  com- 
edo) 


466 


mitted  ;  or  that  the  siispieio'i  ciitcM'taincd  of  the  pris- 
oner was  wholly  grouudless,  in  such  cases  only  it  is 
lawfnl  totally  to  discharoe  him.  Otherwise  he  must 
either  be  committiHl  to  prison,  or  o'ive  bail;  that  is,  put 
in  securities  foi-  his  appearance,  to  answer  the  charge 
against  him.  I'lii.s  cominitiiient,  therefore,  being  only 
for  mfc  ciistlodi/,  wherever  bail  will  answer  the  same  in- 
tention, it  ought  to  be  taken,  as  in  most  of  the  inferior 
crimes.''     Page  1001  Black.  Comm.;  Chase. 

In  tlie  case  of  Hri/cc  v.  (irdlidiit,  which  came  before 
the  House  of  Lords,  sitting  as  a  court  to  hear  ai>peals 
from  the  courts  of  Scotland,  the  (liancellor  said,  with 
reference  to   the  English   practice: 

"The  Court  itself  eini  do  uothinf/  except  to  interpose 
some  temporary  care  when  thai  temporary  care  is  found 
to  be  necessary,  and  to  .sv/k/  the  matter  to  <i  jury."'  The 
Chaneellor  said  that  it  A\as  iinquestiomihly  the  Juw  in 
EnyJund  that  the  Court  had  no  power  to  take  upon 
itself  the  care  of  <nui  individnal,  either  as  to  his  person 
or  as  to  his  ])roperty,  o)i  tJie  f/round  of  insanity,  without 
th(^  verdict  of  a  jury. 

In  Hryee  V.  Crahain  {supra),  2  Will's  7  Shaw's  App. 
Ci\.  4S1  at  ])]).  514-515,  et  se</.  the  (liancellor  in  the 
House  of  Lor<ls,  sitting  as  a  <V)urt  of  A])i)eals  to  hear 
a])jieals  from  the  ciuirts  of  Scotland,  discussing  the 
j)ower  of  the  Court  to  a])])oiiit  a  curator  of  an  alleged 
incom])etent  before  a  jury  had  ])assed  upon  liis  sanity 
said  : 

''llie  (^ourt  ea)\  do  nothinfi  except  to  interpose  some 
lent porary  care,  wlien  that  temporary  care  is  found  to 
he  necessary,  and  to  send  the  matter  to  a  jury.-"  p.  517 
*  *  *  aft(M'  much  reflection,  the  Chancellor  could  not 
bring  himself  to  think  "that  the  Crown  has  in  Scotland 


46- 


wliat  if  unqueHtionahJy  has  not  in  /^Jiu/hnid,  namely,  the 
power  of  takin,i>-  ti]1()ii  itself  the  care  of  any  individuals 
either  as  to  their  ])ersons  or  their  property,  on  the 
ground  that  they  are  of  unsound  mind,  without  the 
verdict  of  a  jury." 

This  was  also  the  ancient  laAV  of  Scotland. 

So  Elmer,  Pi-,  in  Lun.  and  author,  cit.  (supra.) 
''The  Crown  as  parens  patriae  has,  by  virtue  of  its  pre- 
rogative, the  care  and  custody  of  the  person  and  estate 
of  those  of  non-sane  memory  and  who  from  want  of  un- 
derstanding are  incapable  of  taking  care  of  themselves. 
This  Roi/aJ  prerof/ative  seems  to  have  existed  anterior 
to  ^he  Statute  of  IV  E<1.  IT.  called  Prarr.  Regis,  which 
is  declaratory  only  :  the  date  of  its  origin  is  not  easy  at 
this  remote  period  to  ascertain  with  certainty.  It  is, 
however,  a  right  which  is  never  exercised,  but  upon  a 
previous  offiee   {or  inquisition )  found.'' 

So  Lord  Erskine  in  the  Cranmer  Case. 
"I  have  no  authority  to  act  upon  his  liberty  and  his 
property,  except  u])on  a  rercliet.'^ 

In  Cranmer,  Ex  parte,  12  Vesey  Jr.  445.   (1806). 

A  commission  was  issued  to  inquire  whether  H.  (\  is 
a  lunatic.  The  jury  found  that  he  was  so  debilitated 
in  mind  as  to  be  unable  to  manage  his  affairs.  On  mo- 
tion to  confirm:  held,  return  should  be  set  aside  and  a 
new  inquiry  ordered  for  the  railure  of  the  jury  to  find 
a  "lunatic"  or  not  in  the  words  of  the  commission.  The 
Chancellor    (Erskine)    observing: 

"I  have  no  authority  to  act  ujion  his  liberty  and  his 
property,  except  upon  a  veidict,  expressed  in  legal 
words." 

Hence  the  jurv  must  find  on  the  issue  of  the  alleged 


468 


incompetent's  sanity,  unambiguously ;  else  the  court  is 
improperly  substituted  for  the  jury.  Accordingly,  the 
Chancellor  quashed  the  inquisition  and  ordered  a  new 
one. 

On  the  second  application  for  a  fresh  commission  (in- 
stead of  a  fresh  execution  of  the  former  one,  be  it  re- 
membered) the  Chancellor  said  (api)arently  in  response 
to  the  query  of  counsel)  : 

"The  party  certainly  must  be  present  at  the  execution 
of  the  commission.     It  is  his  privilege.'^ 

(p.  455.) 

That  the  foregoing  is  a  correct  statement  of  the  origin 
of  the  powers  of  the  Chancellor  in  lunacy  cases  is  ad- 
mitted in  Hughes  v.  Jones,  116  N.  Y.  67. 

''The  origin  and  history  of  lunacy  proceedings  throw 
some  light  -ipon  the  subject.  It  was  provided  by  an 
early  statute  in  England  that  "the  King  shall  have  the 
custody  of  the  lands  of  natural  fools  ( idiots )  taking  the 
profits  of  them  A\dthout  waste  or  destruction,  and  shall 
find  them  in  necessaries,  of  whose  fee  soever  the  lands 
be  holden ;  and  after  their  death  he  shall  restore  them 
to  their  rightful  heirs,  so  that  no  alienation  shall  be 
made  by  such  idiots,  nor  theii*  heirs  be  in  anywise  dis- 
inherited."    - 

(17  Ed.  II.  Chap.  9.) 

The  same  statute  provided  for  lunatics  or  such  as 
might  have  lucid  intervals,  by  making  the  King  a  trus- 
tee of  their  lands  and  tenements,  without  anv  beneficial 
interest,  as  in  the  case  of  idiots,  who  were  the  source 
of  considerable  revenue  to  the  crown.  [Id.  chap.  10; 
Beverley's  case,  4  Coke  127r/ ;  1  Blackstone's  Comm. 
chap.  8,  No.  18,  p.  304.) 

This  statute  continued  in  force  from  1324  until  1863. 

(Ordronaux  Judicial  As])ects  of  Insanity,  4.) 


469 


The  method  of  procedure  thereunder  is  described  by 
an  early  writer  as  follows:  "And,  therefore,  when  the 
Kinj?  is  infornied  that  one  who  hath  lands  or  tenements 
is  an  idiot,  and  is  a  natural  from  his  birth,  the  king  may 
award  his  A^rit  to  the  Escheator  or  SJieriff  of  the  county 
where  such  idiot  is  to  inquire  thereof."  (Fitzherbert 
de  Nat.  Brev.  232. )  The  object  of  the  tvrit  was  to  ascer- 
tain by  judicial  investigation  whether  the  person  pro- 
ceeded against  was  an  idiot  or  not,  so  that  the  King 
could  act  under  the  statute,  for  his  right  to  control  idiots 
or  lunatics  and  their  estates  did  not  commence  until 
office  found.  (Shelford  on  Lunatics,  etc.,  14.)  Sul)- 
sequenbly  authority  was  given  to  the  Lord  Chancellor 
to  issue  the  writ  or  commission  to  inquire  as  to  the  fact 
of  idiocy  or  lunacy,  and  the  method  of  procedure  was 
by  petition  suggesting  the  lunacy. 

(Id.;  In  re  Brown,  1  Abb.  Pr.  108,  109.)  It  was  the 
ordinary  writ  upon  a  supposed  forfeiture  to  the  crown, 
and  the  proceeding  was  in  behalf  of  the  King  as  the  po- 
litical father  of  his  people.  {Id.;  Fitzherbert  de  Nat. 
Brev.  581.) 

As  the  means  devised  to  give  the  King  his  right  by 
solemn  matter  of  record,  it  was  necessary  before  the 
Sovereign  could  divest  title.  (3  Bl.  Com.  259;  Phillips 
V.  Moore,  100  U.  S.  208,  212 ;  Anderson's  Diet.  tit.  Oflace 
Found.) 

It  Avas  used  to  establish  the  fact  upon  which  the  King's 
rights  depended,  as  in  the  case  of  an  alien  who  would 
hold  land  until  his  alienage  was  authoritativelv  estab- 
lished  by  a  public  officer  upon  an  inquest  held  at  the  in- 
stance of  the  government.  Whether  the  basis  of  the 
action  was  lunacy  or  alienage,  or  otherwise,  the  pro- 
ceeding was  in  behalf  of  the  public,  represented  by  the 
King.      (Id.) 

The  inquisition  was  an  inquiry  made  by  a  jury  before 


470 


a  iSlieriff',  Corouer,  Esclieator  or  other  goverumeut  of- 
ficer, or  hy  coiimiissioiiei\s  specially  appointed,  concern- 
ing any  matter  that  entitled  the  sovereign  to  the  pos- 
session of  lands  or  tenements,  goods  or  chattels,  by  rea- 
son of  an  escheat,  forfeiture,  idiocy  and  the  like.  ( Chit. 
Prerog.  246,  250 ;  Staunt.  55,  Rappalje  &  Lawrence  Law 
Diet,  tit.  Inquest  of  Oflace.) 

''Thus  the  law  came  to  us  from  England,  and  after 
the  Revolution  the  care  and  custody  of  persons  of  un- 
sound mind,  and  the  possession  and  control  of  their 
estates  which  had  belonged  to  the  King  as  a  part  of  his 
prerogative,  became  vested  in  the  people,  who,  by  an 
early  act,  confided  it  to  the  Chancellor,  and  afterwards 
to  the  Courts.  (Laws  of  1788,  chap.  12,  2  Greenl.  25; 
LaAvs  of  1801,  chap.  30;  Laws  of  1847,  chap.  280;  I. 
R.  S.  147;  2  id.  52.) 

'^'^But  while  the  same  poicer  'was  confided,  the  jrrac- 
tice  or  method  of  exercising  that  poiver  was  not  regu- 
lated h)j  the  legislature,  so  that,  almost  of  necessity, 
the  English  course  of  jtroccdure  was  folb)wed.  i  ^Matter 
of  Brown,  supra.) 

"For  nearly  a  century  there  A\as  no  statute  author- 
iziuo  anv  court  or  officer  to  issue  a  commission  of  in- 
quirj^,  except  as  the  right  to  judicially  ascertain  who 
were  lunatics,  etc.,  was  implied  from  the  acts  commit- 
ting their  care  and  custody  at  first  to  the  Chancellor 
and  later  to  the  Supreme  Court.  The  right  to  judicially 
learn  whether  a  person  was  a  lunatic  or  not  was  in- 
ferred from  the  right  to  his  care  and  custody,  provided 
he  was  sucli.  Thus  it  appears  that  these  Proceedings 
have  always  been  instituted  in  hehalf  of  the  public,  at 
first  ///  hehalf  of  the  King,  as  the  guardian  of  his  suh- 
jects,  and  then  in  hehalf  of  the  people  of  the  State,  who 
succeeded  to  the  rights  of  the  King  in  this  regard. 

"In  both  rouiitries  the  theorg  of  the  proceeding  was 


471 


the  mnie,  restiiij*'  \\\Hm  tlie  interest  of  (lie  public,  as  is 
a])i)areut  from  an  exaniiiiation  of  the  various  statutes, 
aud  (k^cksioiis  ui>oii  the  subject  already  cited.  That 
interest  is  promoted  by  taking  care  of  the  persons  and 
property  of  those  who  ai-e  unable  to  care  for  themselves, 
and,  by  ]>reservinii  their  estates  from  waste  and  loss, 
preventing  them  and  their  families  from  becoming  bur- 
dens upon  the  ])nb]ic.  The  liKiittxltloii  is  an  essential 
step  pi'eliiniiiaiif  to  ((.spinning  roittrol.  It  is  a  judicial 
determination  that  the  person  in-oceeded  against  is  one 
of  the  class  of  persons  whose  care  and  ciisto<ly  has  been 
(lel((/(il((l  lo  the  courts  by  the  piihlir." 

If  the  foregoing  is  correct,  it  follows  tiiat  the  phrase 
'Nine  i>rocess  of  law"  as  used  in  the  Xew  York  State  and 
Federal  Constitutions,  implies  the  right  of  trial  by  jury 
before  the  liberty  of  an  individual  could  be  interfered 
with  bv  the  court  of  Chancerv  in  the  exercise  of  its  Lnn- 
acy  powers,  exce])t  where  the  [»olice  ])owei-,  in  cases  of  fu- 
rious nuulness.  requires  a  temporary  restraint  poidituj  (in 
adjudication  of  inmniti)  hi/  "due  process  of  lawJ'  In 
other  words  the  right  to  trial  by  jury  "in  all  cases  in 
ichicJi  it  liii-s  heretofore  been  used''  includes  the  right  in 
Lunacy  cases,  which  right  tin  New  York  State  Consti- 
tution provides  (Art.  I,  Sect.  2)  shall  "reniain  inviolate 
forerer."  Com])are  Art.  L,  Sect.  1,  of  the  ( %)nstitution 
as  follows : 

''No  member  of  this  State  shall  be  disfranchised  or 
deprived  of  any  of  the  rights  or  privileges  secured  to  any 
citizen  thereof,  unless  by  the  law  of  the  land  or  the 
judgment  of  his  peers." 

Where  ci-ime  is  concerned  nothing  could  be  fairer 
or  more  equitable  than  the  safeguar<ls  the  law  of  all 
civilized  countries  throws  around  the  absolute  rights  of 
the  accused  criminal.  l>y  whar  ])rocess  of  rtnisoning  does 
it  come  to  pass,  that  it  is  saf(M-  in  this  day  and  genera- 


472 


tioii  foi'  a  man  to  be  accused  of  murder,  arson,  theft, 
or  what  not,  so  be  that  it  is  strictly  and  unqualifiedly 
criminal  and  vile  in  its  nature,  how  comes  it  to  pass 
nowadays,  that  crime  is  safer  than  insanity?  How  is 
that  result  obtained?  How  is  it  jiot  at?  On  the  charge 
of  the  vilest  crime  the  alleged  criminal  is  notified  of  the 
charge,  summarily  or  otherwise,  he  is  then  allowed  free 
and  untrammeled  access  to  (ounsel,  and  if  too  poor  to 
employ  counsel,  the  law  presents  him  with  one.  There- 
upon he  has  his  day  in  court,  protected  by  all  the  laws 
of  evidence  and  procedure  in  the  regular  course  of  jus- 
tice, l)eing  confronted  with  the  accusation  against  him 
and  the  witness  or  witnesses  Thereto — and  being  allowed 
to  rebut  their  testimonv  and  bv  his  counsel  cross-ex- 
amine  them.  What  on  the  other  hand  is  the  case  with 
the  unfortunate,  law-al)iding  citizen,  accused  of  insanity, 
or  incompetency? 

With  the  honorable  exception  of  a  few  States*  of  the 
United  States,  which  give  an  alleged  lunatic  or  incom- 
petent as  fair  a  chance  for  his  liberty  and  property  as 
an  alleged  criminal ;  with  the  said  exception,  no  coun- 
try of  the  first  class  todav  gives  the  said  alleged  luna- 
tic  or  incompetent  any  show  at  all  for  his  liberty  or 
property. 

The  alleged  lunatic  or  incompetent  in  said  countries 
is  summarily  arrested  without  the  slightest  warning. 
In  nine  cases  out  of  ten  he  does  not  even  know  that  he 
has  been  "examined"  as  to  his  sanitv,  bv  alleged  ex- 
perts  therein;  as  the  universal  rule  among  alleged  ex- 
perts in  insanity,  among  so-called  ''alienists,"  is  to 
grossly  deceive  the  party  they  allegedly  "examine,"  and 
to  lie  to  him,  and  cheat  him  in  every  way  possible  of  the 
truth  of  their  occupation  and  errand. 


♦Michigan,  Mississippi,  Texas,  Colorado,  and  Washington,  all  afford 
trial  by  jury  to  an  alleged  lunatic. 


473 


SoiiK'times  thev  come — as  Dr.  Mos(^s  Allen  Starr  came 
to  Chanler  on  his  alleged  "examination"  in  March,  1897 
— in  the  guise  of  an  oculist. 

Sometimes  they  come  in  the  guise  of  gentlemen  of 
leisure,  who  have  no  business  on  earth  but  to  amuse 
themselves,  and  whose  present  pressing  business  is  to 
amuse  the  alleged  lunatic. 

Sometimes  they  come  as  business  men,  with  a  business 
proposition  to  advance  and,  after  a  few  convivial  drinks, 
and  a  few  such  bogus  business  visits,  clap  their  unsus- 
pecting victim  into  a  mad-house  cell. 

The  above  are  a  few  of  the  tricks  of  the  medical  trade 
as  practiced  by  so-called  experts  in  lunacy. 

There  are  three  ways  in  which  the  alleged  lunatic 
may  obtain  his  freedom.  First— hj  a  procedure  de  luna- 
tico  inquirendo  before  a  sheriff's  jury.  In  that  event  the 
alleged  lunatic  must  be  more  fortunate  than  Chanler 
was,  or  he  will  not  be  able  to  get  before  that  august 
body. 

If  there  is  the  least  likelihood  of  the  alleged  lunatic's 
desiring  to  go  before  said  body,  he  will  encounter  such 
craft  as  Chanler  encountered  at  his  trial  in  1899,  before 
a  sheriff's  jury. 

Chanler  was  confined  in  the  mad-house  branch  of  the 
"Society  of  the  New  York  Hospital,"  said  mad-house 
being  falsely  known  in  his  proceedings  as  "Blooming- 
dale."  Said  bogus  "Bloomingdale"  is  situated  at  White 
Plains,  the  county  seat  of  Westchester.  Chanler  had, 
will  he,  nill  he,  been  an  enforced  resident  of  Westchester 
County  for  over  two  years,  from  1897  to  1899. 

That  would  seem  to  give  Chanler  an  enforced  domicile 
in  Westchester  County.  Surh  being  the  case  it  would 
seem  only  natural  that  any  legal  proceedings  to  inquiue 
into  his  mental  and  physical  state  of  being  should  justly 
be  held  at  the  Court  of  competent  jurisdiction,  nearest 


474 


liis  said  enforced  domicile.  There  lie  has  been  livini>-  for 
more  than  two  yeai's;  there  he  is,  therefore,  more  or  less 
known ;  there  he  is  to  be  ij;ot  at  and  examined  hy  the  said 
Sheriff's  Jury,  provided  said  Sheriff's  .Jnry  is  an  honor- 
able body  of  men,  worthy  of  their  weighty  responsibility 
of  deciding  on  the  earthly  fate,  on  the  earthly  happi- 
ness, of  a  fellow  citizen  of  the  United  States,  who  is 
charged  with  no  crime,  whose  rei)ntation  is  that  of  a  law- 
abiding,  decent  citizen,  held  on  the  innocent  charge  of 
a  mental  affliction.  The  nearest  Conrt  of  competent 
jni'isdiction  to  said  bogns  ''Bloomingdale"  was  the  Sn- 
l)i'eme  Conrt  sitting  at  White  Plains. 

All  the  necessary  machinery  of  jnstice  was  at  hand 
— at  the  very  cell  door  of  Chanler — to  be  set  in  motion 

ft, 

l)y  the  Sheriff's  Jnry  in  de  lunatico  inquirendo  proceed- 
ings institnted  as  it  tnrned  ont,  by  the  same  parties,  or 
two  ont  of  three  of  the  same  7)arties,  who  ran  him  in  as 
an  alleged  lunatic,  without  notice,  trial,  or  opportunity 
to  be  heard  in  ISDT. 

Such  was  the  situation.  Add  to  said  situation  the  fact 
that  Chanlei'  was  sutfering  from  a  neryous  affection  of 
the  spinal  cord,  sui)erinduc"d  by  the  fearful  neryous 
strain  he  had  ])erforce  und^M-gone,  for  more  than  two 
years  ])ast.  This  said  nervous  affection  of  the  spine  left 
his  mind  ])erfectly  clear — as  Ids  letters  from  his  cell  to 
lawyers  he  attem])ted  to  retain  in  his  case  duly  prove — 
but  it  r<mdered  him  so  physically  weak,  and  so  physi- 
cally ailing  that  for  three  weeks  before  said  de  lunatico 
inquirendo  proceeding  in  1899,  as  the  Medical  Superin- 
tendent (»f  "Kloomingdale"  svvore  on  the  stand  in  said 
])roceedings,  ('hauler  had  not  only  kept  his  cell,  but  kept 
his  bed.  Therc^  was  no  doubt,  on  the  evidence  furnished 
by  the  medical  witnesses  foi-  the  other  side  at  said  pro- 
ceedings— there  could  be  no  possible  doubt  of  the  genu- 
ineness of  Chanler's  said  S])inal   trouble,  for  the  said 


475 


medicjil  witnesses  of  the  othei-  side  swore  at  said  trial 
that  Clianler  was  weaTing-  porous  plasters,  and  that  he 
said  they  broni»ht  him  relief.  Now  anyone  who  has  ever 
worn  a  porons  plaster  knows  that,  unless  it  is  ^^•orn  as 
a  counter-irritant  to  eonnteract  an  internal  ailment, 
it  becomes  a  cause  of  ailment  in  itself,  and  blisters  and 
irritates  the  surface  of  the  skin  to  such  an  extent  as  to 
render  its  presence  on  a  person  whose  skin  is  anvthini>' 
short  of  a  hide  in  thickness,  as  to  render  its  ])resence  on 
a  person  with  an  ordinary  sensitive  skin  little  short  of 
torment. 

Such  being'  the  fact,  it  is  impossible  under  th(^  circnm- 
stances,  and  on  the  evidence,  to  (h)ubt  tltat  (Mianlei-  was 
a  real  sufferer  from  said  nervous  ailiiKiil,  wliicli  was 
relieved  by  the  irritation  on  the  surface  of  the  ski?),  set 
up  by  the  said  porous  plaster.  It  being  therefore  prov<Hl 
conclusively,  on  the  evidence  of  the  sworn  witnesses  of 
the  other  .side  that  Chanler  was  ill,  and  bad  been  so  for 
three  weeks  past,  it  beconu^s  an  interesting  question 
why, — if  fair  play  upon  the  part  of  the  parties  institut- 
ing the  said  <Ic  liniatico  inqiiirciido  Tn'oceedings,  if  fair 
play  upon  the  part  of  Messrs.  Winthrop  Astor  ("hauler 
and  Lewis  Stuyvesant  ('hauler  was  inten<]ed  when  the 
said  proceedings  were  br(mght  in  1899,  and  whetiier 
or  not  these  aentlemen  desired  to  give  their  brother  a 
run  for  his  money,  a  chance  to  be  examiiied  by  the 
^^heriff's  Jury  which  sat  on  him — irhji  said  ])roceed- 
ings  were  not  brought  at  AVliite  IMains. 

riere  was  a  large  and  spacious  County  Court  House, 
awaiting  Chanler  within  less  than  a  mile  of  his  cell 
door.  Chanler,  in  spite  of  his  said  nervous  ailment, 
nught  have  been  brought  into  Court  on  a  stretcher  that 
short  distance.  Or  if  that  was  not  desired  the  Sheriff's 
Jury,  or  part  of  them,  could  readily  and  a\  it  bout  great 
inconvenience,  step  into  one  of  the  spacious  "Bloom- 


476 


iugdale"  oiimibusses,  and  witlumt  effort,  be  carried  to 
the  door  of  Chaiiler's  ward  in  ''Bloomingdale."  In- 
stead of  Avliieli,  what  was  done?  The  Proceedings  de 
hmatico  inquircndo  were  held  twenty  miles  or  more 
awav  from  Chanler's  sick  bed,  were  held  in  ^lanhattan, 
and  at  the  extraordinary,  tlie  nnlieard  of  honr  of  four 
P.  M.  AYhy  was  such  an  hour  set  by  the  Commission  for 
such  a  serious  proceeding  as  the  disposal  of  the  ]>rop- 
erty,  freedom  and  happiness  for  life  of  a  law-abiding 
citizen  of  the  United  States? 

AVhy  but  for  the  purpose  of  depriving  said  law-abid- 
ing citizen  of  the  United  States  of  all  three,  of  property, 
of  freedom  and  of  happiness  as  the  result  proves.  'First. 
— At  said  proceedings  the  alleged  experts  in  insanity  of 
the  other  side,  swore  two  opposite  ways.  Said  alleged 
experts  in  insanity  swore  Avhite  was  black.  Said  alleged 
experts  perjured  themselves  on  the  evidence — until, 
figuratively  speaking,  they  were  black  in  the  face.  Said 
alleged  experts  tirst  swore  to  the  effect  that  Chanler  had 
nothing  the  matter  with  him,  in  spite  of  the  presence 
upc^n  his  person  of  the  said  porous  plaster,  in  spite  of 
his  being  in  bed  upon  their  visit  to  him  in  1899,  and 
in  spite  of  his  having  been  so  far  at  least  three  weeks 
previous  to  said  visit.  Whereupon,  a  question  having 
arisen — on  the  strength  of  said  swearing — of  having 
Chanler  brought  before  the  Sheriff's  Jury  at  said  pro- 
ceedings, whereupon  said  question  of  having  Chanler 
brought  before  the  Jury  at  said  proceedings,  hav- 
ing arisen  upon  the  strengtli  of  said  swearing,  a  piti- 
ful spectacle  is  produced,  to  wit.  At  once,  and  in 
the  twinkling  of  an  eye,  the  three  alleged  experts 
in  insanity  of  the  other  side,  proceed  at  once  to  eat 
their  own  oaths,  and  in  a  body,  swear  to  the  exact  con- 
trary of  what  they  had  previously  sworn.  For  example. 
When  they  thought  there  was  no  chance  of  Chanler's  be- 


477 

iug  brought  before  the  jury,  said  alleged  experts  swore 
to  the  effect  that  he  had  nothing  the  matter  with  him 
and  eonld  readily  eome  to  court  if  he  chose.     So  soon, 
however,  as  a  chance  cropped  up   of   Chanler's  being 
brought  to  court — or  possibly   if  fair  play    had    been 
intended,  of  a  committee  made  up  of  members  of  the 
Sheriff's  Jury,  of  a  chance  of  said  committee  of  the 
Jury's  visiting  and  examining  Chanler  in  his  cell — so 
soon,  however,  as  said  chance  cropped  up,  the  said  al- 
leged experts  in  insanity,  one  and  all,  solemnly  mount- 
ed the  stand  and  as  solemnly  swore  tliat  Chanler  was 
not  able  to  be  brought  to  court  without  detriment  to 
him.     If  such  a  spectacle  in  an  alleged  court  of  justice 
is  not  open  and  palpable  perjury,  what  is  it?    As  might 
be  imagined  by  anyone  reading  said  proceedings  a  slight 
discrepancy  such  as  perjury,  however  open,  however  pal- 
pable, passed  without  a  hitch.     Nay,  more.     The  dis- 
tinguished body  sitting  as  the  Sheriff's  Jury  on  said 
occasion,  not  only  swallowed  the  above  palpable  perjury 
without  blinking,  but  on  top  of  such  a  feat  performed 
—so  to  speak— a  juridical  "stunt"  of  its  own,  by  rising  in 
the  person  of  its  distinguished  foreman  and  protesting 
to  the  effect  that  it  mattered  not  to  them  what  condi- 
tion Chanler  was  in,  whether  he  was  well  or  ill,  that 
the  only  thing  they  desired  was  to  cul  the  Proceeding 
short— said  Proceedings  did  not  last   thi'ee  hours,  all 
told— and  that  to  do  that  they  were  perfectly  willing 
to  consign  (lianler  to  a  living  death  upon  their  verdict 
that  he  was  a  madman  and  a  fool. 

As  Chanler  observes  in  his  affidavit  "I  shan't  say  that 
the  jury  was  bought,  l)ut  I  shall  say  that  if  they  had 
been  bought  they  could  not  have  acted  differently."  So 
much  for  the  first  of  the  said  three  ways  in  which  an 
alleged  lunatic  may  obtain  his  libertK^ 


478 


iSecoud. — By  beiii^'  fortunate  eiumjiili  to  (•oiumunicate 
with  the  outside  workl  in  spite  of  the  Cerberus-lilve  vigi- 
lance of  mad-house  doctors,  employees,  and  keepers. 
I'nder  the  rules  of  New  York  mad-houses,  every  letter 
that  goes  out  from  them  must  be  inspected  by  the  au- 
thorities of  said  mad-houses.  AYhat  chance  has  an  al- 
leged lunatic  to  communicate  with  counsel? 

Third. — If  as  fortunate  as  ('hauler,  he  may  escape. 

DISCUSSION  OF  THE  UNITED  STATES  CON- 
STITUTION, SHOWING  CRIMINAL  PEOCEED- 
INGS  AND  LUNACY  PROCEEDINGS  ANALO- 
GOUS IN  NATURE. 

As  we  said  above.  In  the  Proceedings  in  1899  before 
said  Commission  and  said  Sheriff's  Jury,  a  palpable 
breach  of  constitutional  privilege  was  perpetrated,  (1) 
by  the  Court's  failure  to  order  Chanler's  production 
before  said  bodies  in  court;  (2)  failing  this  the  Court's 
failure  to  order  that  said  Commission  as  well  as  said 
jury,  or,  at  least  committees  made  up  of  nuMnl)ers  of 
those  bodies,  visit  Chanler  in  his  cell  in  the  Society 
of  the  New  York  Hospital,  at  White  Plains,  for  the  pur- 
pose of  examining  him.  T^pon  the  maxim  "Analogy  holds 
good  in  laAv"  how  would  it  look  to  read  in  a  Court  report 
that  the  alleged  burglar  was  pronounced  hj  a  brace 
of  doctors  as  phj^sically  incapacitated  from  appearing 
in  court  at  his  trial,  and  that  in  consequence  the  trial 
went  on  in  said  alleged  burglar's  absence  and  tlie  jury 
duly  tinding  said  alleged  burglar  guilty  of  the  crime 
alleged,  duly  convicted  said  burglar,  whereupon  the 
Court  duly  sentenced  said  burglar  in  said  burglar's 
absence  to  ten  years  penal  servitude?  By  what  right 
has  an  alleged  burglar  more  right  to  a  hearing  before 
the  Court  and  jury  that  tries  him  and  condemns  him, 
than  an  honest  alleged  lunatic,  or  an  honest  alleged  in- 


479 


eoiiipetent,  before  the  Court  and  jury  that  tries  lihii  and 
condeiiiiis  Iiim:^     By  what  ri<>lit  has  an  alleged  hnri;lar 
more  ri.uht  to  the  enjoyment  of  a  speedy  and  publie  trial 
by  an  ini])artial  jury,  than  an  honest  alleii'ed  lunatic  or 
an  honest  alleiied  incompetent?     By  what  ri<ilit  has  an 
allei;ed  burglar  more  right  to  be  informed  of  the  nature 
and    cause    of    the    accusation  than  an  honest  alleged 
lunatic,  or  an   honest  alleged  incompetent?      By  what 
right  has  an  alleged  burglar  more  right  to  be  confronted 
with  the  witnesses  against  him  than  an  honest  alleged 
lunatic,   or  an   honest  alleged  incomi>eteiit?     By   what 
right  has  an  alleged   burglar  more  right  to  have  com- 
pulsory process  foi*  obtaining  witnesses  in   his  favour 
than  an  honest  alleged  lunatic,  or  an  honest  alleged  in- 
competent?   By  what  right,  lastly,  has  an  alleged  burg- 
lar more  right  to  have  the  assistance  of  counsel  for  his 
defense,   than  an  honest  alleged  lunatic  or  an   honest 
alleged  incompetent?     We  maintain   that  not   only  is 
it  by  NO  rif/Jit,  hut  tliat  all  pvoccediugs  before  juries,  or 
Sheriff's  Juries,  or  before  a  judge,  referee,  or  commis- 
sion, are  flagrantly  illegal  and  profoundly  unconstitu- 
tional when  an  alleged  lunatic,  or  an  alleged  incompe- 
tent  is  declared   insane,   or  incompetent,   or   both — as 
was  the  case  in  Chanler's  case — either  without  having 
been  brought  before  the  aforesaid  judge,  or  referee,  or 
commission,  or  jury,  or  Sheriff's  jury,  or — if  for  any 
reason  this  is  not  done — a  Committee  made  up  of  mem- 
bers of  the  aforesaid  jury  or  the  said  Commission  and 
Sheriff's  jury  have  not  taken  the  trouble  to  investigate 
the  cause  of  the  absence,   from   his  trial,   of  the  said 
alleged  lunatic  or  the  said  alleged  incompetent  by  visit- 
ing him  and  inquiring  into  it  personally. 

Otherwise  the  door  to  perjury  and  even  murder — as 
indicated  by  the  instances  thereof  hereafter  cited  in 
said  Preface — is  opened  wide;  otherwise  said  Proceed- 


480 


iuos  take  on  a  farcical  character  analagoiis  to  xjroceed- 
ings  at  which  the  astral  body  of  an  alleged  lunatic  is 
sat  upon  by  a  Commission  and  a  Jury  of — phantona^. 

Otherwise  the  Fourteenth  Amendment  to  the  United 
States  Constitution  would  be  contravened.  It  says, 
Section  1,  "All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citi- 
zens of  the  United  States,  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property ,  without  due  pro- 
cess of  law,  nor  deny  to  any  person  within  its  jurisdic- 
tion, the  equal  protection  of  the  laws."  The  right 
*  *  «■  i,f^  ^g  confronted  ivith  the  ivitnesses  against 
Jiiiii;  to  have  compuUorii  process  of  ohtaining  loitnesses 
ill  his  faror;  and  to  hare  the  assistance  of  Counsel  for 
Jiis  defense^'  are  the  ^'privileges"  of  alleged-criminals  in 
jeopardy — in  conse(|uence  of  their  alleged  crimes — of 
life,  liberty,  or  property,  according  to  the  aforesaid 
Sixth  Amendment  to  the  United  States  Constitution. 
If  the  said  "privileges"  of  alleged  criminals  are  denied 
to  honest  alleged  lunatics  and  honest  alleged  incompe- 
tents in  jeopardy — on  a  charge  of  lunacy  or  incompe- 
tency— of  liberty  or  pi-operty,  or  to  ang  person  without 
distinction  of  race,  colour,  honesty,  or  lack  of  honesty, 
intelligence,  or  lack  of  intelligence,  health,  or  lack  of 
health,  wealth,  or  lack  of  wealth,  sanity,  or  lack  of  sanity, 
competence,  or  lack  of  competence,  in  jeopardy — on  any 
charge  that  entails  loss  of  liberty  or  loss  of  property — of 
lil)erty  or  propertj^,  such  a  proceeding  does  ipso  facto 
'Uihridge  the  privileges"  of  alleged  criminals  in  the  case 
of  said  honest  alleged  lunatics,  and  said  honest  alleged 
incompetents,  as  well  as  in  the  case  of  said  ang  person, 
in   contravention  of  the  aforesaid  Fourteenth   Amend- 


481 


meut  which  savs  ''No  State  shall  make  or  enforce  aiiv 
law  which  shall  dhridf/c  I  he  pririlcges  *  *  *  of  citi- 
zens of  the  United  States." 

It  is  therefore  unconstitntional  to  "abridge  the  pri- 
vileges" of  alleged  criminals  in  the  case  of  said  honest 
alleged  lunatics  and  said  honest  alleged  incompetents,  as 
Avell  as  in  the  case  of  said  aiii/  prr.soii.  It  is  therefore 
unconstitutional  to  guarantee  "The  right  *  *  ^  fQ 
he  confronted  irifh  the  witnesses  (u/dinsi  lihn;  to  hare 
com /Hilsorfj  jirocc-ss  for  ohtainuKj  witnesses  in  liis  faroiir : 
(uiil  to  hare  the  assistance  of  Counsel  for  his  defense," 
wherever  the  liberty  or  property  of  an  alleged  felon  is  at 
issue,  and  withhold  them  wher&ver  the  liberty  oi'  prop- 
erty of  a  law-abiding  citizen,  on  a  charge  of  lunacy  or 
incompetency,  is  at  issue,  or  wherever  the  liberty  or 
property  of  said  an//  /terson,  on  said  any  charge  is  at  is- 
sue. If  the  above  pro])ositions  are  corrcM-t  it  follows: 
( 1  »  that  "the  right  *  *  *  to  be  confronted  with  the 
witnesses  againsf  him  ;  to  havc^  c(tmpulsory  process  for 
ol)taining  witnesses  in  his  favour;  and  to  have  the  assist- 
ance of  Counsel  for  his  defense'' — forms  part  of  the  "jn-i- 
vileges"  of  alleged  lunatics  and  alleged  incompetents  in 
jeopardy — on  a  cliarg(^  of  lunacy  or  incompetency — of 
liberty,  or  i)roperty;  as  well  as  of  said  an/j  person  in 
jeopardy — on  any  charge  that  (Mitails  loss  of  liberty  or 
loss  of  property — of  liberty  or  property:  (2)  that  so 
forming  part  it  cannot  be  abridged.  Furthermore.  To 
"abridge  the  privileges"  of  alleged  crinnnals  in  the  case 
said  honest  alleged  incompetents,  and  said  an//  person,  is 
ipso  facto  to  create  class  distinction  in  legal  procedure 
in  favour  of  alleged  criminals,  and  opposed  to  said  honest 
alleged  lunatics,  and  said  honest  alleged  incompetents, 
as  well  as  opposed  to  an//  person  without  distinction  of 
race,  colour,  honesty  or  lack  of  honesty,  intelligence  or 
lack   of  intelligence,  health   or  lack   of  health,   wealth 

(31) 


482 


or  lack  of  wealth,  sanit}'  or  lack  of  sanity,  coinpetence 
or  lack  of  coinpetence  in  jeopardy — on  an^'  charge  that 
entails  loss  of  liberty  or  loss  of  property — of  liberty  or 
property.  Such  an  absnrd  anomaly  ipso  facto  npsets 
an  ecpial  protection  of  the  laws,  and  throws  more  pro- 
tection of  the  laws  around  the  rights  of  an  alleged  crim- 
inal than  those  of  an  honest  alleged  lunatic,  or  an  honest 
alleged  incompetent,  or  those  of  said  any  persioii.  Such 
an  absurd  anomal,y  is  in  direct  contravention  of  the 
Fourteenth  Amendment  to  the  United  States  Constitu- 
tion, aforesaid,  which  says  "Nor  shall  any  State  *  *  * 
deny  to  anif  person  within  its  jurisdiction,  tlic  c<jiial  pro- 
tection of  the  laws.''  It  is  therefore  unconstituti(mal  to 
create  class  distinction,  in  legal  procedure,  in  favor  of 
alleged  criminals  and  opposed  to  said  honest  alleged 
lunatics,  and  said  alleged  incompetents,  and  said  ">///// 
person.'-  It  is  therefore  unconstitutional  to  guarantee 
"The  right  *  *  *  to  be  confronted  with  the  wit- 
nesses against  him ;  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor;  and  to  have  the  assistance 
of  counsel  for  his  defense,-'  wherever  the  liberty  or  prop- 
ertv  of  an  alleged  felon  is  at  issue,  and  withhold  it  wher- 
ever  the  liberty  or  property  of  a  law-abiding  citizen,  on 
a  charge  of  lunacy  or  incompetency,  is  at  issue,  or  wher- 
ever the  liberty  or  property  of  said  "any  person-'  on  said 
any  charge,  is  at  issue.  Furthermore.  If  the  above  pro- 
positions are  correct  we  have  shoAvn :  (I)  that  "The 
right  *  *  *  to  be  confronted  with  the  witnesses 
against  him;  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favour;  and  to  liaA^e  the  assistance  of 
counsel  for  his  defense,'' — forms  part  of  the  privileges 
of  alleged  lunatics  and  alleged  incompetents  in  jeopardy 
— on  a  charge  of  lunacy  or  incompetency — of  liberty  or 
property,  as  well  as  of  said  "^any  person,'-  in  jeopardy — 
on  any  charge  that  entails  loss  of  liberty  or  loss  of  prop- 
erty— of  liberty  or  property;   (2)   that  so  forming  part 


483 


it  cannot  be  abridjiecl.  11  follows  therefore  that  "The 
right  *  *  *  to  be  confronted  with  the  witnesses 
against  him ;  to  have  compulsory  i^rocess  for  obtaining 
witnesses  in  his  favour;  and  to  have  the  assistance  of 
counsel  for  his  defense,"  in  the  case  of  said  alleged  luna- 
tics, and  said  alleged  incoinpeteuts,  as  well  as  in  the 
case  of  said  'V/y/^  pcrsoii' An  due  process  of  law.  It  fol- 
lows, therefore,  that  due  process  of  law  in  said  respect, 
touching  said  alleged  lunatics  and  said  alleged  incom- 
petents, as  well  as  touching  said  ''ainj  person- ■  is  identi- 
cal in  said  respect,  with  due  process  of  law  touching  al- 
leged criminals  and  alleged  malefactors.  Concluding  re- 
marks in  reply  to  brief  of  defendant  in  error  before  Cir- 
cuit Court  of  Appeals. 

COMPARISON  OF  A  CIVIL  CASE  WITH  A 

CASE  IN  LUNACY 

We  shall  now,  we  respectfully  submit,  in  closing  this 
section,  give  a  brief  instance  which  throws  into  some- 
what dazzling  relief  the  audacity,  sophistry  and  falla- 
ciousness of  the  learned  counsel  for  defendant-in-error. 
Said  learned  counsel  says,  with  inipudence  little  short  of 
brazen,  we  respectfully  submit,  that:  "'If  in  any  true 
g'ense  an  alleged  lunatic  who  is  ill  and  physically  unable 
to  appear  when  the  case  is  called  for  trial  is  denied  op- 
portunity to  be  heard  when  the  Court  tried  the  case  with- 
out him,  everi/  other  litigant  who  is  in  the  same  unfor- 
tunate predicament  is  equally  denied  opportumity  to  be 
heard.''  Let  us  take  the  civil  case  of  a  Commission  Mer- 
chant in  New  York  City  sued  for  the  defective  condition 
of  a  carload  of  onions  shipped  from  Flint,  Michigan. 
The  commission  merchant  is  seized  at  the  time  of  the 
civil  suit  with  a  nervous  affection  of  the  spine  which 
forces  him  to  keep  his  bed.  He,  of  course,  has  free  ac- 
cess to  counsel.  The  latter  draws  up  the  Answer  to  the 
Complaint  in  said  civil  suit,  and  brings  same  to  the 


484 


Commission  Mercliaut,  wlio  signs  and  swears  to  same  in 
bed  before  a  Notary.  Therenpon  the  ease  is  called. 
Thereupon  the  case  is  heard  and  the  Answer  to  the  Com- 
mission jNIerchant  read  out  in  open  Court.  And  a  portion 
— say  a  bushel — of  the  res-  (jestac — said  carload  of 
onions — whose  physical  condition  is  in  dispute — duly  at- 
tested— is  brought  into  Court,  and  marked  ''Defendant's 
Exhibit  A."  The  onicms  are  found  to  be  sound,  and  in  a 
healthy  condition,  and  the  Commission  Merchant  wins 
the  case. 

Take  now  the  case  of  an  alleged  lunatic  whose  sanity 
and  competence  are  in  (luestion.  In  the  first  place  he 
mmiof  sen<l  a  sample — a  bushel — as  in  the  former  in- 
stance— of  the  commodity  whose  condition  is  in  (jues- 
tion.  He  (■(III  not  scikJ  a  Jmslicl  of  It  is  Jn-aiiis.  and  of  his 
physical  condition,  to  be  inspected  by  the  Court  and 
Jury — neither  (I  hiisliel  iioi- (dii/  lueasure  irJiatsoerer,  less 
or  mejre,  than  a  hushel. 

Continuing  the  learned  counsel  for  defendaut-in-error 
says,  page  14  of  his  said  brief  before  the  Circuit  Court 
of  Appeals : 

*'The  plain  fact  is,  of  course,  that  one  who  is  phj/sicallij 
iinahle  to  attend  a  trial  is  hji  no  means  denird  an  oppor- 
tnnitii  to  he  heard,  if  he  is  able  to  retain  and  consult 
freely  with  counsel.  The  fact  that  the  piaintilT-in-error 
in  this  case  was  entirely  at  liberty  to  retain  and  consult 
Avith  counsel  appears  not  only  from  the  fact  that  he  wrote 
long  and  full  letters  to  at  least  one  of  his  counsel.  Tiet- 
ter  printed  as  Exhibit  6  for  Identification,"  (Transcript 
of  IJecord,  p.  156,  fols.  305-340). 

The  learned  counsel  for  defendant-in-error  truly  ob- 
serves :  ^'Jf  he  is  able  to  retain  and  consult  freely  with 
counsel."  To  which,  we  respectfully  submit,  we  reply: 
"Yes,  if."  We  respectfully  submit  that  we  grieve  to  say 
that  the  learned  counsel  for  defendant-in-error  here  once 
more  grievously  errs.     Thus.     "The  fact  that  the  plain- 


485 


tiff -ill-error  in  this  case  was  entirely  at  liberty  to  rcitaiu 
and  consult  with  counsel  appears  not  only  from  the  fact 
that  he  wrote  long  and  full  letters  to  at  least  one  of  his 
counsel." 

The  idea,  we  respectfully  submit,  of  calling  one  uniciue 
letter,  got  out  by  stealtli  after  waiting  oyer  90  days  for 
an  <)p])()rtunity  to  get  same  out  unbeknown  to  the  au- 
thorities of  ''Bloomingdale" — ^but  really  not  unbeknown 
to  them  since  the  bearer,  H.  V.  N,  Philip,  was,  as  it  turn- 
ed out,  a  false  friend  to  plaintitf-in-error  and  in  reality 
a  spy  on  him,  in  the  interest  of  plaiutiif-in-error's  ene- 
mies— the  idea  of  calling  (jnc  letter  got  out  under  such 
circumstances — and  the  last  that  was  got  out  unfil  Jan- 
tiary,  1900 — fifteen  months  later — to  call  this  one  letter 
"long  and  full  letters"  is  characteristic  of  the  learned 
counsel  for  defendant-in-error. 

.  All  of  which — we  respectfully  submit — is  more  than 
amply  sujjported  by  th(^  heart-breaking  experience  under- 
gone by  plaintiff"-in-error  in  his  efforts  to  procure  counsel 
to  bring  his  case  to  the  attention  of  the  Courts.  As  the 
Eecord  shows  plaintiff'-in -error  took  immediate  steps — 
upon  finding  himself  in  "Bloomingdale" — to  procure 
counsel.  He  called  upon  his  friend  the  celebrated  jour- 
nalist, Arthur  Brisbane — at  that  time  on  the  New  York 
"^ World/'  and  since  then  editor  of  the  New  York  ''liven- 
ing Journal" — for  relief.  The  futility  of  plaintift"-in- 
error's  well-meant  efforts  is  shown  bv  the  account  of  his 
failure  to  secure  the  professional  seiwices  of  no  less  a 
personage  than  the  late  former  United  States  Senator 
and  former  Governor  of  New  York,  David  B.  Hill, 
through  the  good  offices  of  his  aforesaid  friend,  said 
Arthur  Brisbane.  This  is  indexed — in  Appendix  of  this 
Brief  under  the  caption  '"Hill,  Hon.  David  B.,  Connecticm 
With  of  plaintiff-in-error,  pp.  597-GOl." 

We  desire  to  impress  upon  this  learned  court  the  fact 


486 


— ^we  respectfully  submit — that  the  printing  of  the  ap- 
pendix of  tliis  Brief  was  forced  upon  us  by  the  action  of 
the  learned  counsel  for  defendants-in-error,  who  misin- 
terpreted the  Record,  and  whose  misinterpretation  was 
followed  by  the  Lower  Appellate  Court.  This,  of  course, 
forced  us  to  print  the  true  version  of  that  portion  of  the 
Record  so  misinterpreted.  It  thereupon  occurred  to  us 
that  nothing  but  the  publication  of  all  the  more  salient 
portions  of  said  Record  could  protect  us  in  the  event  of 
further  misinterpretations.  We  respectfully  draw  the 
attention  of  this  learned  Court  to  the  fact  that  toe  did  not 
infringe  upon  the  facts  in  the  Record — we  did  not  tres- 
pass upon  the  facts — in  the  slightest  degree,  in  our  Brief, 
to  the  Lower  Appellate  Court.  That  was  left  for  the 
learned  counsel  for  defendant-in-error  to  do  as  said  coun- 
sel did  not  hesitate  to  do — we  respectfully  submit — and 
thereby  open  up  and  unloose  the — so  to  speak — floodgates 
of  plaintiff-in-error's  "colossal  Deposition" — to  borrow 
the  eloquent  language  of  said  learned  counsel  for  de- 
fendant-in-error. 

We  respectfully  submit,  that  it  might  l)e  well  to  ob- 
serve at  this  point  that  we  based  our  statement  on  page 
597,  Appendix  of  this  Brief,  that  said  David  B.  Hill 
had  been  emploved  bv  the  Chanler  familv  in  a  case  con- 

J.  «.  *.  *■' 

cerning  the  Laura  Astor  Delano  inheritance  tax  before 
this  learned  Court — that  we  stated  that,  on  the  author- 
ity of  the  daily  papers,  ^ye  saw  said  statement  in  the 
daily  press.  The  learned  counsel  for  defeudant-in- 
error  avers  in  his  Opening  Speech  to  the  Jury  in  the 
trial  of  (Italoner  ac/aiust  ^hcniKiii  before  the  learned 
Judge  Holt  in  February,  1912 — indexed  under  the  cap- 
tion "Exhibit  I"  in  the  "Index  of  E.Tltihits/'  Appendix 
of  this  Brief — said  learned  counsel  says,  on  page  831  of 
said  Appendix,  that  said  David  B.  Hill  appeared  against 
the  Chanters  and  not  for  them.     It  is  immaterial  wheth- 


487 


er  said  David  B.  Hill  was  employed  by  the  Chanlers 
or  aiiaiiist  the  ('haulers.  AVe  mention  it  merely  to  sJioio 
OH  I-  </(>(><l  fditli  ill  flic  premises  in  makin<>'  the  aforesaid 
statement  l)ased  on  what  ire  saw  in  flic  iicirsjuipers. 
Plain tiff-in-error,  we  respectfully  submit,  was,  at  the 
time— utterly  eut  off  from  all  communieation  with  his 
own  business  aff'airs — dependent  upon  the  newspapers 
for  aJJ  inforinafioii  regardiiif/  Jiis  own  private  affairs 
of  irhatever  nature — as  he  is  fodaij.  But  it  is  far  from 
immaterial — the  use  said  learned  counsel  for  defen- 
dant-in-error  attempts  to  make  of  our  error — //  error 
it  be — by  lal)elino;  it  a  '^delusion"  and  ''the  work  of  an 
insane  nidii" — to  quote  the  exact  words  of  said  learned 
counsel  for  defendant-in-error,  page  831  ihid.  Our  in- 
ference— on  page  507  ihid — that  the  ('haulers-  had  ex- 
erted influence  of  some  sort  upon  said  David  B.  Hill 
in  order  to  induce  said  Hill  to  desert  the  plaintiff-in- 
error  after  visiting  plaintift'-in-error  in  his  cell  and 
Jicarin;/  that  foul  pJai/  had  heeii  used  af/ainst  plaiii- 
tiff-in-error — that  pcrjiiri/  had  been  had  recourse  to — 
anioiif/  olhcr  things — cmr  said  inference  was  based,  we 
respectfully  submit — upon  the  hypothesis  that  no 
lawyer  mindful  of  his  oath  to  protect  the  laws  wouhl 
have  allowed  such  a  suspicious  circumstance  as  the 
presence  of  foul  play — the  presence  of  perjury — to  pass 
unnoticed — we  respectfully  submit — without  good  and 
sii hsian t ia I  rea son s. 

It  might  be  well  to  state — we  respectfully  s\d)mit — 
that  said  two  letters  from  said  Woods  were  dated  March 
20th,  and  March  80th,  1900.  riaintiff -in -error,  thoiu/h 
placed  on  ''parole"  in  the  earlij  sunnner  of  1800 — at  the 
time  of  the  1809  Proeeedinf/s — was  phj/sicallij  iinahle  to 
irall:  at  all  until  Aiif/iist  of  said  i/ear — as  irill  he  sJiown 
shortlji  1)1/  the  Record.  He  then  began  to  walk,  and  kept 
it  up  until  by  January,  1000,  he  was  able  to  walk  fircire 


488 

miles  ill  three  hows — a  distance  sufficieut  to  ena'>le  him 
to  post  letters  under  liis  ''Bloomingdale"  alias,  tj  e  alias  J 
he  employed  for  this  purpose  while  in  ''Bloominj^,  ale" — 
of  ''James  Chihvorth"  at  Kensico  Postoffic-e,  si:    miles 
from  White  Plains,  wherein  ''Bloominodale"  is  located? 

The  next  effort  plaintiff-in-error  made  to  procure 
counsel  Avas  the  sending-  of  a  letter  to  Attorney  George 
H.  Barnes,  of  New  York  City,  a  former  classmate  of 
plaintiff-in-error  at  Colundna  University — asking  his 
good  offices  to  employ  the  distinguished  counsel  Delos 
McCurdv  of  New  York  Citv — personally  known  to  plain- 
tiif-in-error — besides  both  said  McCurdy  and  plaintiff- 
in-error  l>eing  mend)ers  of  the  jNIanhattan  Club,  New 
York  City — to  bring  habeas  corpus  proceedings  looking 
to  ])laintiff-in-error's  release  from  "Bloomingdale." 
Through  no  fault  of  his,  said  Barnes  signally  failed  in 
retaining  said  McCurdy  for  plaintiff-in-error.  The  his- 
tory of  this  is  fully  given  in  the  deposition  of  plaintiff- 
in-erroi-.  It  is  touched  on  here — in  the  case  of  said 
Barnes — on  ])ages  2(;0-278  and  405-471  and  477-484  and 
(501 -002,  Appendix. 

The  next  effort  plaintiff-in-error  made  to  procure 
counsel  was  the  sending  of  various  and  sundry  letters 
to  his  venerable  friend  the  late  Thomas  Jefferson  ^Nlil- 
ler  of  the  said  Manhattan  (^ub,  New  York  (Hty— from 
Kensico,  AA'estchester  County,  New  York,  aforesaid,  un- 
der plaintitt'-in-error-s  then  alias  aforesaid  of  "James 
Chilworth" — which  alias  was  changed  each  time  plain- 
tift"-in-error  fled  from  and  into  a  different  State  of  the 
United  States  in  the  pursuit  of  liberty  and  happiness. 
For  instance:  upon  ileeing  from  "Bloomingdale" 
Thanksgiving  Eve,  1900,  into  the  State  of  Pennsylvania, 
plaintift-in-error  assumed  the  alias  of  "John  Childe." 
At  the  expiration  of  some  nine  months — more  or  less — 
and  upon  ])laintiff-in-error"s  departure  from  the  State 


489 

of  J*(Miii:'ylvaiiia  into  the  State  of  Viri;inia,  plaintilf-in- 
'vroi-  a!«',Jdiiied  the  alias  of  'Maiuos  Chilton"  for  the  six 
weeks,  i^^ore  or  less — dnrino  which  he  was  at  the  "Arling- 
toTi  TTo  '1,"  Lynchlmrii,  N'iriiinia,  in  whieh  city  of  Lyndi- 
bnrii',  tlie  late  Tnited  States  Senator  John  Warwick 
Daniel  had  liis  law  oHfices  and  home. 

As  afoi-esaid  :  The  next  effort  plaintiff -in-eiTor  made 
to  pvocnre  counsel  was  the  sending,  of  various  and  sun- 
dry letters  from  Kensico,  Westchester  County,  New 
York,  under  plaintiff-in-error's  then  alias  of  "James 
Chilworth'' — in  order  to  enable  plaintiff-in-error  to  send 
and  receive  letters  unbeknown  to  the  "Bloomingdale" 
authorities — by  whom  the  sending  of  uucensored  letters 
^vMs — as  aforesaid — forbidden — to  plaintiff-in-error's  old 
and  tried  friend,  the  late  Thomas  Jefferson  :\liller,  of  the 
:\Ianhattan  Club,  aforesaid,  by  whom  plaintiff-in-error 
had  been  introduced  to  said  Delos  Mc(Hird.y.  Said 
somewhat  voluminous  correspondence  is  indexed — Ap- 
pendix— under  the  caption  :  "Miller,  Thomas  J.,  Cor- 
respondence with  plaintift'-in-error  re  Delos  ^McCurdy," 
457-470. 

\Vc  rvspccifiilhi  siihiiiit  tliat  the  Icifcr  from  said 
ThODKi.s  Jeffci-soii  Miller  to  pUtiiitiff-iii-en-or  ddfed 
merely  ''^epteinher  'IXfli — oit  pafje  MV2  ibid — f<]i(uihi  hare 
the  year  "1901" — a/f'i.red  tJierefo;  since  said  letter  was 
in  reply  to  one  from  plaintiff-in-errcu-  written  in  Sep- 
tember, 1901,  after  plaintiff-iu-error's  escape  frcmi 
''Bloomingdale"  and  arrival  in  Virginia.- 

To  resume.  Said  Thomas  Jefferson  :\Iill(n-  had  done 
his  best  to  induce  the  learned  Delos  McCurdy,  of  New 
York,  to  take  plaintiff'-in-error's  case,  but,  through  no 
fault  of  his— said  Thomas  Jefferson  Miller— said  Delos 
McCurdy  did  not  take  plaintiff-in-error's  case. 

The  next  effort  plaintiff-in-error  made  to  procure  coun- 
sel— and  this  was  plaintiff-in-error's  last  and  final  effort 


490 

prior  to  his  escape'  in  despair  of  proeiiring  counsel  on 
any  terms  while  in  so  inauspicious  a  locality  as  a  Mad- 
house— the  final  effort  plaintift'-in-error  made  to  procure 
counsel  was  a  correspondence  instituted  with  an  old  col- 
lei;e  classmate  and  brother  New  York  lawyer — touched 
upon  on  pp.  470472,  //)/(/ — Halstead  II.  Frost,  Jr.     This 
proved  as  unfruitful  as  all  plaintiff -in-error's  former  cor- 
respondence in  the  premises.     >S'o  plaintiff-iii-crior  con- 
eluded  to  escape  and  did  ihereiipon,  Tlianksgiring  Eve, 
1900 — escape,  and  fled  to  PhiladelpJiia,  where  he  remain- 
ed in   a  private  sanatorium   for  si.ic  months   under  ob- 
servation at  the  hands  of  leading  alienists  at  liis  own 
request  in  order  to  offset  ihe  nearlij  four  j/rars  of  en- 
forced confinement    in    '' Bloom ingdale.'^     A    verij    few 
n-eels  of  ohservatioii  sufficed  to  prove  plaint  iff -in -error's 
entire  sanitg  and  c<rmj)etency;  at  the  end  of  n-Jiicli  time 
the  alienists  pronounced  plaintiff-in-error  sane  and  com- 
petent, and  assured  plaintiff-in-error  that  iJieij  would  so 
testify  at  the  proper,  time.    Whereupon  plaintilf-in-error 
— after  said  six  months  in  said  sanatorium  followed  by 
six  weeks  in  the  country,  in  the  county  of  Delaware, 
Pennsylvania — went  to  Lynchburg,  Virginia,  and  pre- 
pared with  his  counsel,  Daniel,  aforesaid,  and  other  coun- 
sel to  bring  forward  his  case  of  (lialoner  again.st  Sher- 
man.   He  voluntarily  prolonged  his  stay  till  the  full  six 
said  months  were  up.     In  order  that  this  learned  ('ourt 
may  get  a  clear  and  succinct  idea  of  plaintiff-in-error's 
untiring  efforts  to  procure  counsel — spread  over  a  period 
of  nearly  four  years — from  March,  1897,  to  November, 
1901,  and  in  the  teeth  of  as  hitter  and  tnonotonously  reg- 
ular disappointment,    M'e    respectfully    submit,    as    the 
human  heart  ever  received,  we  here  insert  the  first  eight 
pages  from  plaintiff -in-error's  Trial  Brief,  which  with  its 
Appendix,  are  stipulated  by  counsel  to  be  treated,  on  ap- 
peal, as  a  model  exhibit — see  page  154,  Transcript  of 
Record. 


491 


The  melancholy  spectacle  of  laAvver  after  lawyer  fall- 
ing by  the  wayside  as  the  biirden  and  heat  of  temptation 
plaj^ed  upon  said  lawyer's  professional  interests,  hopes 
or  fears — the  melancholy  monotony  of  collapse — moral 
collapse — upon  the  part  of  this  stately,  sedate  and  emin- 
ent procession  of  distinguished  counsel;  as  each  softly, 
steadily,  and  stealthily  Ayent  by  the  board,  is  surely — we 
respectfully  submit — substance  to~  employ  the  pen  of  a  sa- 
tiricar  Historian  of  our  enlightened  and  allegedly  aspir- 
ing times.  One  would  suppose  that  the  parable  of  the 
good  Samaritan  had  neyer  fallen  upon  the  ears  of  that 
celebrated  assemblage  known  as  the  Bar  of  the  "Empire 
State."  One  would  suppose  that :  "Do  unto  others  as  you 
would  they  should  do  unto  you,"  was  a  new  and  strange 
hypothesis  smacking  of  adyenture  and  rashness.  One 
would  suppose — finally — that  the  duty  of  honest  men  to 
stand  shoulder  to  shoulder  against  dishonest  eyen  in 
high  places — eyen  in  the  "Seats  of  the  ^Mighty" — had 
been  so  swamped  by  the  ill-smelling  flood  of  commer- 
cialism \yliich  has — alas  1  in  the  past  forty  years  almost 
changed  the  character — as  it  surely  lias  changed  and 
lowered  the  morality,  the  truthfulness  and  the  honesty 
— of  the  old-time  lawyer,  down  to  the  degraded  and 
degenerate  leyel  of  a  dishonest  business  man ;  whose 
slouan  is  :  "Get  rir-h!  Get  rich — honestly  if  you  can — but 
get  rich  imi/irair— one  would  suppose — finally — that  the 
duty  of  honest  men  to  stand  shoulder  to  shoulder  against 
thieyes  in  high  places,  thieyes  in  High  Society ;  thieves  in 
High  Finance — icho  did  their  steaVuuh  hoicerer,  irithin 
the  law — had  been  so  swamped  by  the  sewer-like  tide 
of  commercialism,  now  flooding  so  many  law  offices  in 
the  Metropolis  of  this  great  Nation,  that  the  old-time 
lawyer  had  giyen  way  to  the  stock  broker,  the  stock 
jol)ber — not  to  say  the  "stock-rigger." 

This  language,  we  respectfully  submit,  may  not  ap- 


492 


pear  iiattei-in*;  to  the  Legal  Profession,  but  nevertheless 
said  langviai'e  is  scarcely  less  flattering  to  said  profes- 
sion than  the  language  of  one  of  its  most  eminent  and 
widely  respected  lights — namely  Edward  G.  Whitaker, 
Esq.,  President  of  the  New  York  fc^tate  Bar  Association, 
1897  and  1S9S.  Here  are  his  words,  of  course,  veiled  and 
suave  as  the  langimge  of  a  lawyer  naturally  and  always 
is — taken  from  "Four  Years  Behind  the  Bars  of  'Bloom- 
ingdale,"  Or  the  Bankruptcy  of  Law  in  N(nv  York," 
published  hy  plaintiff-in-error  in  1900,  and  of  record  in 
this  case,  pp.  281-285. 


^'Resume. 


}} 


"The  following  editorial  taken  from  Ncav  York  AVorld 
of  January  23rd,  1898,  sheds  light  upon  said  species  of 
degeneracy: 

"A  STABTLTNG  IND1CT3IENT."' 

When  President  AMiitaker,  of  the  State  Bar 
Association  asserted,  in  a  imblic  address,  that 
'perjury  is  committed  in  some  form  or  other 
in  at  least  Ave  out  of  every  ten  litigated  cases,' 
it  seemed  that  he  had  made  about  as  startling  an 
indictment  of  current  morals  as  it  was  possible  to 
make.  But  he  went  on  to  cap  it  with  an  amazing 
climax :  'If  the  lawyers  of  this  ^tate  would  posi- 
tivelj)  discourage  false  swearing  on  the  part  of 
their  own  clients,  and  honestly  endeavor  to  have 
it  punished  when  committed  by  the  clients  of  their 
adversary  the  crime  would  gvo^x  suddenly  less.' 

"Organized  Society  is  founded  upon  law  and 
held  together  bv  Statute.  And  law  does  not 
mean  printed  pages  of  Statute  Books,  but  the 
effective  operation  of  Courts  of  Justice — lawyers. 


493 

Jndsios  and  Jiivies  working-  together  to  secure  to 
every  man  his  rights.  ,Oue  of  the  essentials  of  the 
true  court  of  justice  is  the  veracity  of  w  itnesses. 
If  it  should  come  to  pass  that  men  did  not,  as  a 
rule,  tell  the  truth  in  courts,  justice  would  cease, 
and  the  reign  of  law  be  tottering  to  the  fall. 

''Yet  litis  eminent  lawyer  tells  ns  tJiat  iioini- 
(lai/s  false  witness  is  horneriii  half  of  all  the  case.^ 
ill  oar  coartfi,  and  that  the  responsibility  for  this 
state  of  affairs  is  not  only  indirectly  but  also 
direct  I  !i  upon — the  lairi/ers!  The  lawyers  sitting 
in  Legislatures  are  the  chief  makers  of  inten- 
tionally clou<ly  and  ambiguous  laws.  The  lawyers 
acting  as  'counsel'  are  the  chief  teachers  of  law- 
defying  and  law-evading.  And  iinally  hi/  the  ad- 
mission of  one  of  their  ciiiiiicnt  rcprexeiitatires, 
they  are  hnsii  proenrer^^  of  false  swearin;/  and 
false  irifiiesfi.  These  are  indeed  amazing  manifes- 
tations of  the  perverse  spirit  of  destructiveness. 
Here  are  those  irlio  oiujht  to  he  the  chief  defend- 
ers and  Hphnildcrs  of  (H(/ani:cd  socichj  toilin'/  to 
hriiifi  it  down  in  rains." 

We  now  insert  said  portions  of  said  address  of  Edward 
G.  Whitaker,  former  president  of  the  New  York  State 
Bar  Association. 

FROM  THE  TWO  ADDRESSES  OF  EDWARD 
G.  WHITAKER,  DELIVERED  BEFORE 
THE  NEW  YORK  STATE  BAR  ASSOC ^lA- 
TION,  AS  ITS  PRESIDENT,  AT  ITS  AN- 
NUAL :\IEET1NGS  IN  1S97  AND  1898. 

*     *     *     ''In   closing,    I   (h^sire  to   say   a   few 
words  upon   what   T  consider  the  greatest  exist- 


494 


iiiii'  evil  in  the  administration  of  Justice — the 
prevalency  of  the  crime  of  perjury  in  legal  pro- 
ceedings— and  to  make  one  or  two  suggestions 
towards  a  partial  remedy.  The  profession,  I  be- 
lieve, generallu  concedes  that  perjury  is  at  the 
present  time  the  most  prevalent  and  danycrous 
crime — and  the  most  seldom  punished.  It  has 
come  to  such  a  pass  that  men,  standing  high  in 
the  community,  apparently  think  nothing  of 
swearing  falsely  to  pleadings,  in  order  to  delay 
and  defeat  justice.  Most  of  this  false  swearing 
to  pleadings  is  made  safe  and  possible  by  the 
use  of  that  great  per  jury -begetting  provision  of 
our  Code — which  allows  allegations  upon  infor- 
mation and  belief,  and  denials  upon  Avant  of  in- 
formation or  belief.  But,  in  addition  to  swear- 
ing falsely  to  affidavits  and  pleadings,  many  men 
have  no  regard  at  all  for  the  sanctity  of  an  oath 
administered  in  a  court  of  Justice.  To  such 
men  the  actual  defeat  of  Justice,  if  it  be  to  their 
pecuniary  benefit,  is  viewed  with  complacency, 
even  though  affected  by  perjury. 

/  tJiink  it  is  the  observation  of  judges  and  of 
practicing  lawyers  that  the  crime  of  perjury  is 
committed  in  some  form  or  other  in  at  least  five 
out  of  every  ten  litigated  cases.  After  talking  to 
many  lawyers  and  judges  upon  the  subject,  this  is 
the  loA\'est  estimate  I  have  received.  When  we 
consider  the  thousands  of  litigated  cases  that  are 
tried  in  our  State  each  year,  it  is  simply  appall- 
ing. It  is  an  awful,  hut,  I  believe,  a  true  con- 
fession. It  is  a  shame  on  the  administration  of 
Justice  and  a  disgrace  to  our  nineteen  centuries 
of  Christian  civilization.  Were  David  now  alive, 
he  micht  again  exclaim :    'All  men  are  liars.' 


495 


"The  cause  of  the  increase  and  prevalency  of 
perjury  is  uot  hard  to  find.  It  arises  largely  from 
a  weakening  in  the  belief  of  future  punishment, 
and  apparent  certainty  of  freedom  from  present 
punishment. 

''The  chief  test  of  the  obligation  of  an  oath  is 
based  upon  a  belief  in  future  punishment,  as  is 
evidenced  by  the  form  of  the  oath,  and  manner 
of  its  administration,  as  recognized  by  law.  If, 
therefore,  we  eliminate  all  idea  of  future  punish- 
ment for  perjury,  and  inflict  no  present  punish- 
ment, or  in  other  loords,  abolish  all  punishment, 
both  here  and  hereafter,  it  is  not  to  be  wondered 
at  that  the  crime  will  prevail,  and  that  men  will 
not  hesitate  to  commit  it  to  further  their  inter- 
ests. For  punishment  is  the  great  deterrent  to 
crime.  From  the  year  1830  to  189G  there  have 
only  been  on  an  average  three  convictions  a  year 
for  perjury.  And  during  the  last  two  years  only 
one  conviction.  The  crime  is  increasing,  and  the 
punishment  decreasing.  Unless  the  commission 
of  the  crime  of  perjury  he  checked,  the  enforce- 
ment of  rights  or  prevention  of  ivrongs  through 
the  administration  of  Justice  will  lecome  a  farce. 

"Can  the  commission  of  perjury  be  checked, 
and  how.  :\rost  emphatically,  yes,  by  the  bench 
and  bar;  by  the  Judges  directing  investigation 
to  be  made  by  the  District  Attorney  in  all  cases 
tried  before  them,  when  they  have  reason  to  be- 
lieve perjury  had  been  committed  and  can  be 
proved.  And  hy  members  of  the  Bar  simply  be- 
ing honest  and  true  to  their  profession.  If  the 
lawyers  of  this  State  would  positively  discour- 
age false  swearing  on  the  part  of  their  own  clients, 
and  honestly  endeavor  to  have,  it  punished  when 


49G 


committed  by  the  clients  of  their  adversary,  the 
crime  would  grow  suddenly  less.  It  is  the  pro- 
fessional duty  of  every  lawyer  to  do  this.  He 
owes  it  to  himself ;  he  owes  it  to  his  fellow  man ; 
he  owes  it  to  his  country,  and  he  owes  it  to  his 
God. 

''In  populous  Counties  there  should  he  a  De- 
partment in  the  office  of  every  District  Attorney^ 
devoted  entirely  to  the  prosecution  of  the  crime  of 
perjury^  where  lawyers,  who  desire  to  do  their 
duty,  could  take  such  cases."     *     *     * 

No  more  striking  example  of  one  of  the  "five  out  of 
every  ten  litigated  cases"  mentioned  by  President 
Whitaker,  in  which  perjury  is  committed,  could  be 
imagined  than  the  spectacle  thereof  afforded  in  the 
documentary  evidence  in  this  case. 

The  desertion  of  plaintift'-in-error  by  the  late  David 
B.  Hill,  already  touched  on  in  ])ages  597-()01,  of  Appen- 
dix of  this  Brief — is  plainly  outlined  in  the  letter  of  that 
distinguished  statesman  to  ])laintift'-in-error,  presented 
herewith,  taken  from  Volume  III  of  plaintift'-in-error's 
aforesaid  Deposition,  ])ages  S83-835. 

"Woolfert's  Roost," 

Albany,  N.  Y.,  May  11),  ISDT. 
Mr.  John  Armstrong  ('hauler, 

P.  O.  Box  175,  White  Plains,  N.  Y. 
My  Dear  Mr.  Chanler : — 

Your  recent  letter  and  telegram  were  both  duly  re- 
ceived. Agreeably  to  your  request,  I  forward  you  here- 
with a  certified  copy  of  those  commitment  papers  from 
the  Lunacv  Commission  office  here. 

I  had  expected  to  l>e  in  New  York  earlier,  but  profes- 
sional  engagements  have  kept   me   busy   here.      I   had 


497 


hoped  to  be  there  last  week  or  tliis  week,  when  I  in- 
tended to  see  yon  personally  after  consnltation  with 
onr  nuitnal  friend,  JMr.  Brisbane,  bnt  find  myself  nn- 
able  to  get  away  at  present.  It  was  iiM])ortant  before 
takini>  any  action  that  I  shonld  learn  more  of  vonr  sit- 
nation  from  mutual  friends.  Under  the  eireumstanees 
by  reason  of  my  other  engagements  and  the  absence 
of  more  authentic  information  in  regard  to  your  sit- 
uation I  do  not  see  my  way  clear  at  present  to  take  up 
your  case. 

I  regretted  to  learn  of  your  illness,  and  trust  that  by 
complete  rest  you  nuiy  speedily  recover  your  health. 

With  kindest  regards,  I  remain, 

Very  truly  yours, 

DAVID  B.  HILL. 

We  respectfully  submit  that  the  above  letter  is  surely 
a  remarkable  one  to  emanate  from  a  la^yyer  in  the 
practice  of  his  profession — as  said  David  B.  Hill  then 
was — who  has  had  a  colossaj  criiiH'  shown  to  him  by  a 
man  fully  capable  of  satisfying  his  pecuniary  compen- 
sation— to  put  it  somewhat  mildly — so  soon  as  said 
lawyer  should  have  had  the  honour,  the  courage,  the 
character  and  the  sense  of  Professional  duty — not  to 
speak  of  public  duty  to  the  administration  of  .Justice 
and  the  support  of  Law  and  Order — not  to  hint  at 
Patriotism  or  any  of  the  political  cafchn'ords  so  frc- 
qucntJij  sonorous!})  faJUng  from  the  rarchj  closed  lips 
of  the  Hon.  Dar.id  Bennett  Hill — to  set  the  wheels  of 
Justice  revolving  and  enabling  the  unfortunately  sit- 
uated plaintitf-in-error  to  avail  himself  of  that — to  a 
lawyer  at  least — sui-ely  reasonable,  surely  Constitu- 
tional privilege — to  wit — his  day  in  court.  But  no. 
Said  distinguished  Statesman  and  defender  of  Demo- 
cratic principles  for  so  many  years  in  the  very  centre 

(32) 


408 


of  tlic  aiciin  of  National  politics  supinely  folded  his 
hands  and  then  swiftly  and  craftily  "sidestepped" — 
so  to  sj)eak — any  future  consecjuences  of  his  afore- 
said desertion  of  an  American  citizen  in  distress  and 
the  ])al])al)le  victim  of  as  vile,  venal  and  bold-hloodedly 
mali<'ions  and  nefarious  a  consi)iracy  as  history -holds 
any  record  of — hy  crcatinff  an  utterly  false  iiiiprcssion 
ill  Jii.s  said  letter.  Which  conveys  the  idea  that  said 
David  I>.  Hill  has  merely  heard  of  ])laintiff-in-error"'s 
ti'onble — in  the  first  place — and  that  said  trouble  is 
merely  a  jilii/sieal  one  as  insiiiuificant,  in  fact,  as  a  pass- 
inji'  physicjil  indisposition!  Said  David  B.  Hill  would 
never  for  one  moment  be  suspected — from  the  per- 
usal by  a  third  party  of  said  letter — of  havin^i'  discussed 
a  <2;reat  crime  with  a  brother  mend)er  of  the  Bar  of 
New  York — plaintiff-in-error — in  the  cell  of  said  lawyer 
for  some  two  hours,  as  he  did  (Appendix,  598),  and 
l)een  put  thorouj>hly  in  touch  with  the  whole  nefarious 
situation  to  such  an  extent  that  all  any  competent  at- 
torney needed  to  have  done  would  have  been  to  verify 
the  alle_nations  of  plaintiff-in-error;  which  would  have 
resulted  in  convincinii  any  comi)etent  attorney  that 
jM^rjury  and  nothini;  more  legal  or  substantial  than 
])erjury,  sujryorted  hi/  fanrili/  dissensions  of  i/ears'  stand- 
ing, iras  tlic  foandation  of  the  situation.  The  reason 
said  David  I>.  Hill  had  the  recklessness  to  write  such  a 
l(4ter  to  a  l>rothei-  lawyer  in  the  aforesaid  almost  un- 
parallel(Ml  ])redicanient  of  distress,  lawlessness  and  reck- 
less disregard  of  the  least  vestige  of  his  Constitutional 
rights,  is  that  said  I)avi<l  B.  Hill  very  well  knew  the 
J-eputation  of  "Bloomingdale"  foi-  ability  to  hold  on 
to  a  good  thing,  that  chance  and  the  unconstitutional 
Lunacy  Laws  of  New  York — permitting  permanent  in- 
carceration without  either  notice  or  ojiportunity  to  ap- 
jx'ar  and   be   heard — to  the  accused — to   h(dd   on   to  a 


490 


ji'ood  tliiiiii'  that  chaiu'c  and  the  Lunacy  Laws  of  New 
York  liad  ohliiiiiiiily  hroiiulit  its  way.  Said  David  P>. 
Hill  well  knew  the  ])ow(M-fnl  cotcTic.  the  iiildcd  cliqnc, 
coiisistinu'  of  the  proudest,  wealthiest,  oldest  an<l  most 
l)i-oniinenl  ni(Mnbers  of  ]\retro])olitan  society — in  all  of 
its  vai-ions  walks — Law  as  well  as  Medicine,  Politics 
as  well  as  Finance,  Philanthi-oi)y  ,as  well  as  what  is 
popularly  known  as  the  "Four  Hundred" — who  stood 
shouhhM-  to  should(M',  bank  account  to  bank  account, 
and  i-ei)utation  to  reputation,  a  formidable — an  even 
impenetrable — Phalanx  of  Avealth,  experience,  assurance 
and  resource — behind  ^'Rloominiidale."  Said  David  B. 
Hill  very  well  knew  that  at  the  first  sii!,n  of  attack  upon 
the  fastnesses  of  "P.loomini;(hile"  the  practically  limit- 
less resources  of  said  <iilded  Phalanx  would  instantly 
silence  the  timid  and  venal  press  of  the  Metro]K)lis, 
as  well  as  the  timid  and  venal  I>ar  thereof,  as  well  as 
the  surely  not  audaciously  bold  Public  Prosecutors — 
either  State  or  Federal  on  Manliattan  Island.*  Fur- 
thermore, said  David  B.  Hill  very  well  knew  that  the 
most  prominent  attorneys  would  be  at  once  retained 
by  the  ])laintiff-in-error''s  enemies,  wliich  said  promi- 
nent attornevs  would t   till   the  air  with   loud   outcries 


*Where  rich  men  who  are  socially  prominent  are  concerned — not 
where  East  Side  "gangsters"  are  in  issue.  Vide  the  utter  collapse 
of  the  formerly  truculent  W.  Travers  Jerome  in  re  the  prosecution 
of  the  Traction  Magnates  after  said  doughty  Public  Prosecutor's 
visit  to  said  magnates  "inner  offices."  After — as  a  New  York  City 
paper  expressed  it  editorially — said  Jerome:  "Caught  his  foot  in 
a  Traction  frog." 

■5- As  does  said  Joseph  H.  Choate,  Jr.,  in  his  said  Opening  Speech — 
"Exhibit  I,"  Brief,  Appendix,  p.  830 — "The  most  eminent  and  re- 
spected  citizens   of   this   city!"     And   again,    when    Hon.    Frederick 

A.  Ware — in  his  Opening  Speech,  p.  820,  Appendix — spoke  the  simple 
truth  about   "Bloomingdale,"  and   described   it  as   said   Dr.    Samuel 

B.  Lyon  did  [(T.  R..  p.  114,  fol.  224).  Q.  "Is  the  Bloomingdale 
Asylum  for  the  Insane  part  of  any  Institution  in  this  city?  A.  It 
is  the  Insane  Department  of  the  New  York  Hospital."! — adding 
what  is  vouched  for  by  the  outrageous  mulct  of  some  twenty  thou- 
sand dollars  aforesaid  of  plaintiff-in-error's  money — vouched  for  by 


500 


against  the  preposteroiisness  of  asserting-  that  men  in 
the  position — social,  financial  and  otherwise — of  the  so- 
called  "Governors"  of  "Blooniingdale"  could  under  any 
conceivable  circumstances  err  or  go  astray — as  is  so 
frequently  the  case  with  less  wealthy,  prominent  and 
powerful  men  than  said  "Governors"  of  "Blooming- 
dale."  Said  David  B.  Hill  well  knew  the  proneness  of 
the  mob  to  admire  and  stand  in  awe  of  wealth  and  posi- 
tion, and  therefore  the  tendency  of  the  mob  to  disbe- 
lieve any  attack  upon  the  rectitude  of  the  rich.  Last- 
ly, said  David  B.  Hill  well  knew  that  plaintiff-in-error 
was  civUiter  mortuus  in  New  York  and  would  in  all 
probability  be  in  articulo  mortis  and  beyond — before  he 
emerged — or  at  least  his  corpse — from  "Bloomingdale." 
There  was,  therefore,  little  risk  in  writing  such  a  false 
and  deceptive  letter  as  the  one  said  Hill  did. 

The  extraordinarv — the  inonstroiis,  inhuman — atti- 
tude  of  said  Delos  McCurdy  towards  plaintiff-in-error 
is  not  far  to  seek.  Either  said  Delos  McCurdy  was  as 
afraid  of  said  embattled  and  gilded  Phalanx — said 
Board  of  "Governors"  of  "Bloomingdale"  as,  on  the 
evidence — was  said  David  B.  Hill — or  said  Delos  Mc- 
Curdy happened  to  be  in  the  employ,  professionally, 
of  some  member  of  said  Boar<l  of  "Governors" — or  was 
on  terms  of  friendship  so  strong  with  one  or  more  mem- 


the  cover  aforesaid  of  said  Commitment  Papers  stating  that  plain- 
tiff-in-error was  cliarged  one  hundred  dollars  a  week  (not  counting 
extras)  at  "Bloomingdale."  Hon.  Frederick  A.  Ware,  to-wit: 
"  'Bloomingdale,'  by  the  way,  gentlemen,  is  a  department  of  the 
Society  of  the  New  York  Hospital  of  this  city.  It  is  practically 
the  Psychopathic  Ward.  It  is  a  great,  big.  money -making  proposi- 
tion." Said  Joseph  H.  Choate,  Jr., — for  reasons  best  known  to  him- 
self flies  to  the  aid  of  the  Bastile  of  the  "Four  Hundred"  and  makes 
a  desperate  attempt  to  intimidate  Mr.  Ware  with  the  following 
brazen,  bald,  braggadocio  bluff.  To-wit:  Mr.  Choate:  "You  do  not 
mean  to  make  that  statement  in  earnest  to  this  jury?  Mr.  Miller: 
It  will  be  proved  in  evidence.  I  don't  think  Mr.  Ware  is  stating 
anything  that  will  not  be  in  evidence  in  this  case.  Mr.  Ware:  I 
have  not  one  word  to  retract,  if  your  Honor  will  allow  me  to 
proceed." 


501 


bers  of  said  Board,  that  even  the  spectacle  of  a  hideous 
crime  a*>aiiist  the  liberty,  property,  happiness  and  Con- 
stitutional rights  of  an  American  citizen  and  a  brother 
member  of  the  Bar  of  New  York  must  become  subservi- 
ent thereto. 

The  amaziu<»ly  peculiar  attitude  of  plaintiff-in-error's 
old  friend,  the  late  Captain  Micajah  Woods,  Common- 
wealth's Attorney  for  Albemarle  County,  is  charge- 
able first,  last  and  all  the  time  to  the  poisonous  venom 
injected  into  said  Woods'  mind  by  plaintiff-in-error's 
aforesaid  false  friend  and  former  law-partner,  said  H. 
V.  N.  Philip.  It  will  l)e  remeuibered  that  said  Philip 
succeeded  in  ingratiating  himself  into  the  confidence 
of  plaintiff-in-error  sufficiently  to  induce  plaintil¥-in- 
error  to  entrust  to  his  keeping  the  most  precious  docu- 
ment in  the  world  to  plaintiff-in-error.  To  wit,  the  long 
letter  aforesaid  to  said  Captain  Micajah  Woods,  set- 
ting forth  the  iniquity  of  the  conspiracy  concocted 
against  plaintiff-in-error  by  plaintiff-in-error's  unnat- 
ural millionaire  brothers  and  sisters,  to  possess  them- 
selves of  plaintiff-in-error's  large  and  steadily  grow- 
ing estate.  It  will  be  remembered  that  said  H.  V.  N. 
Philip  was  false  to  said  trust  and  instilled  a  fatal  doubt 
into  the  mind  of  said  AYoods  bv  saving  to  him  in  ef- 
feet :  "Do  nothing  in  this  matter  without  first  notify- 
ing me."  The  fatal  effect  of  said  words  is  readily  dis- 
cernible from  the  tenor  of  said  AVoods'  letter  brought 
to  plaintiff-in-error  by  said  H.  V.  N.  Philip  upon  the 
latter's  return  from  Charlottesville,  Virginia,  where 
said  AA^oods  resided.  Said  letter  promised  to  give  the 
whole  matter  the  most  careful  consideration,  to  advise 
with  the  late  United  States  Senator,  John  Warwick 
Daniel,  of  A'irginia,  and  then  to  let  plaintiff-in-error 
hear  from  him.    We  here  insert  said  letter. 


502 


"LETTER  FROM  CAPTAIN  MK^IJAH  WOODS  TO 
PLAINTIFF-IX-ERROR,    DATED   OCTOBER 

14,  1897;  pp.  25S,  I'.VJ,  I'dO,  Appendix. 

Q.  By  Counsel  for  Plaintiff:  Mr.  (^laloner,  I  hand 
you  a  lettei-  and  the  envelope^  that  contains  it,  and  ask 
you  to  describe  both  the  envelope  and  letter,  and  the 
circumstances  under  which  they  were  received? 

A.  This  is  an  envelope  addressed  Mohn  A.  ( 'hauler, 
Esq.,  N.  Y.  Politeness  of,'  name  underneath  blotted 
out  by  me  for  fear  that  the  asylum  authorities  would 
get  hold  of  it.  Tliis  letter  was  received  by  me,  as  a 
fjencil  note  in  blue  pencil  indicates,  made  under  the  sig- 
nature of  the  writer  in  the  following  ^^'ords  'About  three, 
Saturday  afternoon  October  Kith,  1897.  .1.  A.  (\'  This 
is  a  letter  that  I  received  from  the  late  Micajah  Woods, 
the  Commonwealth's  Attorney  of  All)enmrle  County, 
Virginia.  I  was  in  'Bloomingdale'  (falsely  so  called). 
The  Society  of  the  Ne\>'  A^ork  Hospital,  White  Plains, 
and  reads  as  follows : 

'Charlottesville,  Va.,   October  14,   1897. 

Tn  the  left  hand  to|>  corner  ap])ears  the  following  in 
print : 

'^licajah  Woods, 

Attorney  at  Law, 

Comnum wealth's  Attorney.' 

'John  Armstrong  Chanler,  Esq., 

Mv  Dear  Sir  :— ' 

'Mr.'  and  the  name  that  follows  has  been  blotted  out 
by  me,  and  the  remainder  of  the  letter  reads  as  fol- 
lows : 


503 

'has  this  day  (h'livcred  to  inc  your  scaled  ((Mniiuiiiica- 
noii,  coiitaiuiiiL;-  enclosures.  1  assure  yon  I  will  Jiive 
the  whoh^  matter  the  most  careful  consideration.  I  will 
advise  with  the  gentlemen  yoii  refer  to  and  will  then 
let  von  hear  from  me.  1  am  now  eni;a«ied  in  trial  of 
important  cases  in  court  and  will  be  so  en-iajied  durinii 
the  next  week. 

With  my  best  wishes  and  sincere  re!j:,ar(ls. 
Sincerely  your  friend, 

MICA.] All  WOODS.' 

Tliis  is  Ihe  rejily  to  the  letter  just  olfered  in  evidence, 
which  was  sent  by  me  to  Captain  Woods  by  a  special 
messeni»er  to  Charlottesyille  on  or  about  the  lotli  of 
October. 

By  (Vmnsel  for  IMaintitf:  We  iile  this  letter  and 
envelope  in  evidence,  and  ask  that  the  same  be  marked  for 
identification  and  made  a  pai-t  of  the  evidence  in  tliis 
case. 

Said  letter  and  envelopes  are  marked  'Plaintiff's  Ex- 
liibits  3<)  and  31)-a.' ''     *     *     * 

Wv  i-espectfully  submit  that  we  have  not  ov(M'drawii 
the  situation  in  describing];'  the  treachercms  words  of  said 
H.  V.  X.  rhilip  as  havin.o-  had  a  "fatal  elfect"  upon  said 
Captain  Micajah  Woods'  plediicd  word--as  set  forth  in 
said  letter,  dated  October  14th,  1S!)7,  to  plaintifl"-iu-error. 
For  not  a  line  canu^  to  plaintiH'-in-error  until  in  the  early 
part  of  the  year  1!I()0,  plaintiff-in-error  wrote  said  Cap- 
tain Woods. 

>Ve  now  insert  letters  from  and  to  said  Captain  Woods 
to  plaintiff-iii-error  under  the  hitter's  then  alias  afore- 
said of  James  (Mnlworth  from  Kensico,  Westchester 
County,  New  York — some  six  miles  from  White  Plains. 

*>    7 


504 


LETTEPvS  PASSING  BETWEEN  CAPTAIN  MICA- 
JAII  WOODS  AND  PLAINTIFF-IN-EIJROi:  IN  1900. 

From    ''Blooniiiigdale,"    4:73-47r),   Appendix. 

By  the  Witness:  Tlie  next  letter  is  numbered  "(I)."' 
Tliis  contains  two  letters  from  the  late  Captain  Micajah 
AVoods,  Commonwealth's  Attorney  for  Albemarle  Coun- 
ty, Va.,  one  dated  ''Charlottesville,  Va.,  20  .March,'  1900," 
addressed  to  "Jas.  Chilworth,  Esq.,  Keusico,  N.  Y.," 
which  I  now  read: 

"Mv  Dear  Sir: — 

Yours  received,  I  scarcely  know  what  to  do  or  advise 
in  your  case.  I  am  so  constantly  engaged  here  both  day 
and  night  in  my  business,  that  I  have  been  unable  U) 
ffo  to  N.  Y.  to  consult  with  certain  friends  of  vours  as  to 
what  course  to  pursue.  It  is  certain  that  some  promi- 
nent friend  of  yours  in  N.  Y.  could  serve  you  more 
efficiently  than  I  could,  as  I  am  a  stranger  to  the  people 
there  and  not  familiar  with  the  N.  Y.  procedure  in  such 
cases.  I  would  suggest  that  you  communicate  with 
James  Lindsav  Gordan,  Asst.  Dist.  Attornev,  New  Y^ork 
City;  he  is  an  old  friend  of  yours — on  the  ground,  and 
familiar  with  the  influences  that  will  have  to  be  exer- 
cised to  restore  vou  to  libertv  arid  the  exercise  of  your 
rights. 

"I  certainly  sympathize  with  you  in  youv  situation,  and 
sincerelv  wish  I  could  do  something  for  your  relief. 

"My  people  are  all  well.     With  kindest  regards,  I  am 

Sincerely  yours, 
(Signed)  MICAJAH   WOODS." 

Then  my  reply  in  blue  pencil  to  the  same,  to  Captain 
^licajah  Woods,  dated  March  20,   from   White  Plains, 


505 


"The  Society  of  tlie  New  York  Hospital,"  White  Plaius, 
N.  Y.,  March  2(ith,  1900,"  which  I  ikav  read: 

"Hon.   Micajah   Woods. 

"My  Dear  Captain  : — 

"Yours  of  Marcli  29tli  to  hand.  I  am  very  much  ob- 
liged to  you  for  replying  to  my  previous  note  so  promptly, 
I  fully  comprehend  the  difficulties  surrounding  your 
position.  The  gentleman  you  suggest  I  should  employ  in 
my  case  is  unavailable.  I  have,  however,  otlier  lawyers 
in  view.  I  have  just  written  one  of  them  in  relation  to 
my  case  and  made  an  ap])ointment  foi-  one  meeting 
secretly.  You  will  readil^^  understand  the  importance  to 
me  and  my  case  of  my  letter  to  you  dated  July  3rd,  1897, 
and  its  enclosures,  to- wit :  a  certified  copy  of  ray  commit- 
ment papers  and  a  page  from  "The  Quick  or  the  Dead." 
I  have  a  rough  penciled  copy  of  the  said  letter,  but 
it  is  not  in  shape  for  ready  reference  or  easy  legible 
reading.  As  this  letter  contains  a  comi)lete  and  exhaus- 
tive histoi-A'  of  my  case,  written  A\'hen  the  events  were 
fresh  in  my  mind,  you  will  easily  see  its  importance  to 
me  in  giving  a  complete  and  succinct  recital  of  the  events 
which  led  to  my  arrest  and  what  followed,  to  my  law- 
yers,  I,  therefore,  enclose  a  special  delivery  stamp, 
which  is  almost  as  sure  as  a  register  stamp,  to  insure 
the  safe  arrival  of  the  aforesaid  vitally  important  docu- 
ments to  myself.  Please  mail  them  to  James  CliUwortli, 
Kensico,  Wcstchesfer  Co.,  'Ncic  York.  I  hope  before  long 
to  haye  the  pleasure  of  calling  on  you  in  Charlottesville 
and  laughing  over  the  predicament  in  which  I  am  at 
present.  In  the  meantime,  please  let  the  strictest  secrecy 
clothe  everything  I  have  written  von. 


500 


"Hopiiii;  to  hear  from  you  by  roluni  mail,  and  with 
sincere  regards. 

Sincerely  yours, 
-JOHN   AKMSTRONG   CHANLER." 
(The  original  signature  is  in  ink.) 

Tlien  another  letter  from  the  said  Captain  Micajah 
Woods,  dated  ''(^larlottesville,  Va.,  30  Maj-ch,  1900," 
which  I  now  read : 

":My  Dear  Friend: — 

"Yours  received.  1  have  mailed  to  you  this  morning 
the  documents  you  wish.  The  paper  you  wrote  is  clear, 
strong  and  logical,  and  will  be  of  immense  service  to  your 
friends  and  attorneys  in  N.  Y. 

I  do  earnestly  hope  your  efforts  to  secure  relief  will 
be  successful ;  you  must  let  me  know  the  progress  you 
make  in  this  line,  and  advise  nu^  of  the  name  or  names  of 
your  N.  Y.  Attorneys,  and  at  the  proper  time,  if  I  can  pos- 
sibly leave  here,  I  will  go  on  and  confer  and  co-operate 
with  them. 

''With  my  best  wishes  and  kindest  regards,  1  am 

Sincerely  yours, 
(Signed)  MICAJAll  WOODS." 

"Jas.  (^hil worth, 
(J.  A.  r.) 
Keusico,  P.  O., 

Westchester  (\i.,   N.   Y." 

All  of  which  shows  that  1  was  doing  my  best  to  get 
(mt  of  "Bloomingdale,"  by  legal  means;  that  I  had  no 
idea  wdiatever  of  escaping;  that  I  wanted  to  get  out  on 
habeas  corpus  proceedings.  The  first  use  I  made  of  my 
liberty  wiien  I  c<mld  go  outside  of  bounds  by  permis- 


507 


sioii  (»f  Dr.  Lvon  was  to  entor  into  convspoiideuce  witli 
lawyers  looking  to  my  release  from  "Blooniiiiiidale"  by 
legal  process,  and  I  worked  from  March,  or  rather, 
earlier  than  that — 1  wrote  a  letter  which  in  the  hurry 
of  the  Proceedings  now,  owing  to  the  fact  that  the  case 
must  be  ready  by  the  preliminary  call  of  the  January 
calendar,  1912,  1  have  not  time  to  find  that  first  lettei-, 
to  whicli  this  one  of  Capt.  .Micajah  Woods'  dated  20, 
March,  1000,  is  a  reply — but  it  was  on  or  about  the  lat- 
ter part  of  January,  1900,  that  1  first  wrote  to  Captain 
Micajah  ^Voods.  This  correspondence  is  fully  described 
in  "Four  Years  Behind  the  Bars,"  and  this  missing  link 
is  verv  fully  described — this  letter  which  1  do  not  find 
now — this  first  letter  that  I  wrote. 

By  Counsel  for  Defendant:     The  same  objection. 

By  Counsel  for  Plaintiff:  I  now  tile  the  letters  just 
referred  to  by  !Mr.  Chaloner,  and  ask  that  the  same  be 
marked  for  identification  and  nuide  a  part  of  the  eyi- 
dence  in  this  case.  The  said  exhibits  are  mai-ked  'Plain- 
tiff's Exhibits  No.  155,  No.  155-a  and  No.  155-b.' 

By  Counsel  for  Defendant :  The  introduction  of  these 
exhibits  excepted  to  for  the  reasons  heretofore  stated." 

The  fatal  effects  of  said  H.  V.  N.  Philip's  aforesaid 
treacherous  words  are  apparent — we  respectfully  submit 
— in  the  two  foregoing  letters  from  said  Captain  Woods 
to  plaintiff -in-error.  ^yl^(')}  it  is  hoi-iic  in  mi  ml  tJtat  ■'<(ii<l 
Captain  Woods  had  ignored  tJie  trlef/i-ain  sent  Jiiiit  hi/ 
■said  H.  y.  X.  PJiilip,  prior  to  tJir  1899  rrocccdinf/.s  be- 
fore the  Commission-in-Lunaeij  and  ^heri^f'x  -fur if  afore- 
said (page  456,  Brief,  Vol.  II),  additional  proof — of  the 
deadly  effect  of  said  H.  V.  N.  Philip,  we  respectfully 
submit — will  be  found. 

We  now  come  to  the  last  phase  of  the  amazingly  pecu- 
liar attitude  of  said  Capt.  Micajah  Woods  towards  plain- 
tiff-in-error.     This  iis  indicated  in  said  Captain  Woods' 


508 

failure  to  -state  fiaiiklij  <ni  the  stand  iu  the  11)08  Deposi- 
tion of  phiintiif-in-erroi-  in  CharlottesviUe,  Virginia,  in 
reply  to  counsel  that  he  knew  of  his  own  knoirledf/e  that 
the  late  John  B.  Moon,  attorney  and  counsellor  of  Char- 
lottesville, Virginia,  represented  the  late  Prescott  Hall 
Butler,  the  falsely  alleged  Coniniittee  of  plaintiff -in-error 
in  the  Virginia  Proceedings,  November  Gth,  1901,  in  the 
then  County  now  Circuit  Court  of  Albemarle  ( .ounty,  at 
Charlottesville,  aforesaid.  Since  he— said  Captain  Mica- 
jah  Woods — knew  of  his  own  knowledge  that  said  John 
B.  Moon  had  for  a  lonf/  time — for  some  two  ijears — 
represented  said  Prescott  Hall  Butler  in  Tirr/inia.  That 
in  the  first  place  said  John  B.  iNIoon  had  been  appointed 
the  Guardian  ad  litem  for  plaiutiff-in-error  in  what  are 
known  as  the  Louisa  Count ij  Proceedings — at  the  Court 
House  at  Louisa  in  the  County  of  that  name — in  the 
State  of  Virginia,  September  20th,  1901— and  found  on 
page  050  of  Trial  Brief  by  plaintiff-in-error,  printed  in 
1905;  fully  gone  into  further  on  in  this  Brief.  On  the 
20tli  day  of  September,  1901,  counsel  for  plaintiff-in- 
error — Hon.  Armistead  C.  Gordon,  of  Staunton,  Vir- 
ginia, Hon.  Frederick  Harper,  partner  of  Senator  Daniel 
— aforesaid — among  whom  was  said  Captain  Micajah 
Woods — appeared  in  the  Louisa  Circuit  Court,  aforesaid, 
and  obtained  a  stay  in  Proceedings  then  pending — and  at 
bar — looking  to  the  payment  of  some  thirteen  hundred 
dollars  to  said  John  B.  Moon  as  the  Guardian  ad  litem 
of  plaintiff-in-error;  the  same  being  the  proceeds  of  the 
sale  of  "Hawkwood,"  an  estate  in  Louisa  County — 
bought  on  a  mortgage  by  plaintiff-in-error  in  1894. 
That  plaintiff-in-error's  said  counsel — among  whom 
was  said  Cai)tain  Micajah  Woods — stated  to  the  Court 
that  plaintiff-in-error  was  not  dead,  as  was  supposed, 
but  had  appeared  that  day  in  Charlottesville,  and  been 
intervie^^•ed  l)y  representatives  of  leading    New    York 


509 

City  juipei's  there,  thus  breakiiig-  the  mysterious  silence 
which  had  shrouded  phiintitf-in-ei-ror's  footsteps  from 
the  day  he  escaped  from  "Bloominii(hde;'  Thaiis^iving 
Eve,  1900,  to  that  day.  That  neither  was  phiintiff-in- 
error  insane.  That  phiintitf-in-error  had  spent  six 
months  in  voluntary  confinement  in  a  private  Sanato- 
rium in  IMiiladelphia,  under  the  observation  of  alienists 
of  the  hi«.^liest  professional  standini*-  in  the  country. 
That  said  alienists'  opinions  would  be  read  in  court. 
That  a  Petition  by  a  neiiihbor  of  plaintiff-in-error's — 
by  name,  ('ary  Ruffin  Kandolph — askini>  for  a  judicial 
investigation  of  plaintiff-in-error's  sanity  as  an  escaped 
lunatic  had  been  tliat  day  filed  in  the  County  Court  of 
Albemarle  County  at  Charlottesville,  and  that  said  case 
would  be  heard  at  the  approaching  term  of  said  Court, 
to  wit,  the  October  term.  That,  thei-efore,  the  said  counsel 
prayed  the  learned  Court  to  sus})end  the  present  Pro- 
ceedings until  after  the  October  Proceedings  aforesaid, 
in  the  Albemarle  County  Court,  could  take  place.  Where- 
upon and  providing  that  said  Proceedings  found  the 
plaintiff-in-error  sane  and  competent,  that  then,  and 
in  that  event,  the  said  thirteen  hundred  dollars  should 
be  paid  over  to  plaintiff-in-error's  counsel  for  plaintiff- 
in-error,  an<l  not  to  said  Guardian  ad  litem,  said  John 
B.  Moon. 

Whereui)()n  the  said  learned  Court  granted  the  prayer 
of  counsel  for  plaintiff-in-error.  Whereu])on  on  January 
25th,  1902,  said  learned  Court  turned  over  said  thir- 
teen hundred  dollars  to  said  Captain  Micajah  Woods, 
charging  him  to  make  certain  payments  therefrom  be- 
fore handing  the  residue  to  jilaintiff-in-error.  To  wit. 
'That  :Micajah  Woods,  attorney  for  John  Armstrong 
Chanter  b(\  and  hereby  is,  authorized  to  withdraw  from 
the  papers  of  this  cause  the  certificate  of  deposit  of  the 
People's  National   Bank  of  Charlottesville,  Va..  dated 


510 


the  ITtli  (lay  of  -Iiiiic,  HIOI.  for  the  sum  of  11,34.4.58 
;iii(l  collect  the  same  h'ss  JtfUS.i'l,  which  he  shall  de- 
posit to  the  credit  of  the  cause — being  the  net  snrphis 
halance  remainin.u  on  hand  nnex])ended,  from  the  pro- 
ceeds of  the  sale  of  the  Jiawkwood  estate  in  this  cause. 
Said  Mica j ah  Woods,  attorney  as  aforesaid — shall  pajj 
to  John  B.  Moon  the  sum  of  .f250,  hein</  fee  due  said 
Moon  and  Iris  ((ssoeiates  for  ser rices  rendered  in  eon- 
neetion  witli  the  defense  and  proteetion  of  said  Chan- 
ler's  interests  in  tJiis  eausc,  in  which  said  Moon  acted 
as  f/uardian  ad  litem,  and  he  shall  account  to  the  said 
CMianler  for  the  residue  of  said  certificate  of  deposit. 
J.  E.  Mason,  Judiie  of  the  Circuit  Court  of  Louisa 
County.'' 

The  api)earance  of  counsel  for  plaintitf-in-error  at 
Louisa  as  aforesaid,  was  the  first  intimation  said  John 
B.  Moon  had  that  plaintiff-in-error  was  alive,  and  not 
dead,  as  the  New  York  City  newspapers  were  in  the 
habit  of  from  time  to  time  surmising.  Thereupon  said 
John  B.  Moon  requested  said  Captain  Woods  to  com- 
municate with  his  fellow  counsel  and  get  their  consent 
to  a  continuance  from  the  October  to  the  November 
terui  of  the  Albemarle  County  Court.  Thereupon  said 
counsel  consulted  with  plaintiff-in-error  and  the  said 
re(piest  of  said  John  B.  Moon  was  granted.  Where- 
U])<)n  the  aforesaid  examination  into  the  sanity  of 
plaintiff-in-error  by  the  Judge  of  the  County  Court  of 
Albemarle  County  was  continued  until  the  Novendter 
tei'iii  of  said  Court.  In  the  oi)ening  address  of  said 
Captain  ^^'oods — in  the  Virginia  Proceedings  on  tile 
in  this  case — to  the  Judge  of  said  Court — November 
6,  1901 — the  following  language  ap])ears  on  the  record 
as  couiing  from  said  Captain  Woods  to  said  Court. 
To  wit:  "Your  Honour  is  aware  that  this  petition  was 
prepared   and    it   ^^•as  ex])ected   that   it   would   be  tiled 


511 

at  the  last  icvm  of  the  Couii,  Itut,  owiiiii  to  su<;^i'stioiis 
made,  and  especially  the  suiiii'eslioii  made  l>y  counsel 
for  Committee  of  Mi'.  Chalouei-  i  said  .loliii  !>.  Moon), 
the  petition  was  not  tiled  at  the  last  Court,  hut  it  was 
understood  that  it  would  be  heard  today,  and  we  are 
here  today  to  have  the  matter  investijiated." 

As  aforesaid  the  last  ])hase  of  the  amazin<ily  ])eeuliar 
attitude  of  said  ra])tain  :MicaJah  \yoods  towards  plain- 
tiff-iu-error  is  indicated  in  said  (^iptain  Woods'  fail- 
ure to  state  frankly  on  the  stand  in  the  1908  Deposi- 
tion of  plaintiff-in-error  that  he  knew  of  his  own  knowl- 
ediie  that  (  A  )  said  John  B.  ^loon  i-ei)resented  the  late 
Prescott  Hall  I'utler — the  falsely  alleiied  Committee 
of  plaintiff-in-error — in  the  Virginia  Proceedinjis,  Xo- 
vember  (Ith,  1901.  That  ( /i )  ,wi<]  Captain  Micajah 
Woods — old  and  irart/  counsel  as  he  iras — aUoired  Jii in- 
self  to  })(•  inreif/led  into  nuikinf/  such  an  absurd  state- 
ment— cominij  as  it  did  front  a  lairi/er  of  the  profes- 
sional standinf/  of  said  Captain  Micajah  Woods — upon 
cross-examination  as  the  folloirimj:  '"Ind  Q.  by  Counsel 
for  defendant:  'And  no  representatire  of  the  Committee 
appeared  upon  tJie  Jiearinf/  of  the  case  in  November, 
1901.^  A.  Xo,  sir:  "  Said  John  B.  Moon  did  not  take 
part  in  the  hearinit  of  the  case  aforesaid,  but  he  iras 
present  in  Court  until  plaintiff-in-error  left  the  stand. 
Said  John  B.  Moon  refrained  from  cross-examininii- 
plaintift'-iu-error  an<l  left  the  court  room  so  soon  as 
plaintiff-in-error  left  the  stand. 

We  shall  presently  insert  said  Louisa  County  Pro- 
ceedings: the  testimony  aforesaid  of  said  Captain  Mica- 
jah Woods  at  plaintiff -i)i-errors  Deposition  in  1908; 
and  a  portion  of  plaintiff-in-error  s  testimony  thereat 
describiny  his  purchase  of  the  '' ffaudy-wood"  Estate 
aforesaid.  The  said  Louisa  Proceediniis  an<l  the  afore- 
said testimony  of  said  Ca])tain  Micajah  Woods  are  of 


512 


great  importance  in  establishing  the  absolute  and  per- 
fect regularity  of  the  aforesaid  Virginia  Proceedings 
of  November  6th,  1901,  under  the  laws  of  that  State. 
Since  Captain  Micajah  Woods,  aforesaid,  is  (idinitted 
hi/  the  learned  counsel  for  defendant-in-error,  Joseph  H. 
CJwate,  Jr. — who  took  part  in  the  said  Deposition — 
to  he  an  expert  on  Virginia  lair  and  practice;  for  a 
note  in  said  Deposition  of  1008 — found  page  121,  Vol. 
II  of  this  Brief  says  as  follows:  "Note — It  is  conceded 
that  the  witness  (said  Captain  Micajah  Woods)  is 
qualified  as  an  expert  to  testify  and  no  objection  is 
raised  on  that  ground.*'  Furthermore.  The  defendant- 
in-error  attacks  said  Virginia  Proceedings — claims  that 
no  notice  was  given  the  other  side  when  the  said  Vir- 
ginia Proceedings  of  November  0,  1901,  were  instituted 
and  also  that  said  Proceedings  were  collusive  and  void. 
See  162  Fed.  Rep.  aforesaid,  to  wit:  ''The  Defendant 
—  (the  defendant-in-error) — sets  up  that  the  Virginia 
decree  was  obtained  by  collusion  and  is  void."  Whereas 
notice  of  said  Proceedings  was  ipso  facto  served  on 
the  other  side  September  20th,  1901,  when  i)laintiff-in- 
error's  counsel  appeai-ed  at  the  Court  House  in  Louisa 
and  gave  notice  in  the  hearing  of  said  John  B.  Moon, 
the  then  Guardian  ad  litem  of  plaintiff-in-error,  that  the 
Virginia  l*roceedings  had  that  dav  been  instituted  bv 
the  aforesaid  Petition  of  said  Cary  Ruffin  Randolph, 
praying  for  an  examination  into  the  sanity  of  plaintiff- 
in-error  bv  the  Judge  of  the  Countv  Court  of  Albemarle 
County ;  and  that  said  case  would  come  on  for  hear- 
ing at  the  October  term  of  the  Court.  AVhereupon  said 
Louisa  County  Proceedings  of  September  20th,  1901, 
were  continued  indefinitely,  to  await  the  decision  in 
said  A^irginia  Proceedings  in  the  County  Court  of  Al- 
bemarle County.  Whereupon  said  John  B.  Moon  re- 
quested the  continuance  of  said  Virginia  Proceedings 


513 


from  the  October  term  of  stiid  f^onrt  till  the  November 
term  thereof.  Which  request  \\as  inrjiiitcd  l»y  ])laintiff- 
in-eiToi*  and  his  coiiiise].  \\'( ,  therefore,  respectfull}/ 
submit,  tJi<(t  it  does  not  lie  in  the  moutli  of  defenddnt- 
in-error  to  assert  in  the  teetJt  of  the  above  recorded  evi- 
dence thai  Jiis  side  did  not  receive  notice  of  a  Proceed- 
ing irhich  iras  jtostponed  one  calendar  month  at  Jiis 
jwedecessor's — said  Prescott  Hall  Butler's — request! 

Pai'ticiilarly  since  said  (''a])tain  Micajali  Woods — then 
President  of  the  Tirf/inia  State  Bar  Association — and 
acknoirledijed — as  aforesaid  by  said  Joseph  If.  CJtoate, 
Jr.,  to  he  •'(/iialificd  as  an  e.vpert  to  testifif  H])on  the 
Vinjinia  hnr  (Did  practice  {supra} — particuhirly  since 
said  Captain  Micajali  Woods  testified  in  said  1908  Depo- 
sition of  plaintilf-in-error  at  Cliarlottesville,  Virjiinia 
— pajie  128,  Vol.  II  of  this  Brief — as  follows:  '^A.  Under 
the  Statnte  nnder  which  this  Proceeding  was  institnted 
there  is  no  provision,  and  was  no  provision,  for  giving- 
notice  to  any  person  except  the  ])arty  suspected  of  being 
insane,  and  in  investij^ations  nndei'  the  section  of  the 
Statnte  which  I  have  recited,  and  under  investigations 
before  justices  touching  the  sanity  of  a  person,  there  is 
no  law  requiring  notice  to  be  given  to  the  next  of  kin 
or  the  parties  holding  the  estate  of  the  party  suspected 
or  any  ]iart  thereof. 

47th  Q.  Under  the  law  in  Virginia,  then,  it  is  not 
necessary  to  give  notice  to  anyone  except  the  alleged 
incompetent  person,  is  that  the  effect  of  your  answer? 

A.  Yes,  sir.'' 

So  much  for  the  conduct  of  the  only  three  lawyers 
])laintiff-in-error  was  able  to  communicate  with  during 
the  nearly  four  years  he  was  a  ])risoner  in  "Blooming- 
dale" — to  wit — the  late  Governor  David  Bennett  Hill ; 
Delos  McCurdy,  and  the  late  Ua])tain  Mieajah  Woods, 
^ommon^^•(nllth's  Attornev  for  Albemarle  Tountv,  Vir- 


514 

giiiia,  from  1870  until  the  day  of  his  death;  besides 
being-  President  of  the  Virginia  State  I5ar  Association 
for  the  year  IDOS-!).  Tbe  fact  that  said  Captain  Miea- 
jah  Woods  died  A\ithin  a  year — more  or  less — of  the 
date  of  his  said  testimony  sheds  some  light  upon  said 
testimony — his  memory  evidently  was  failing  rapidly. 
Furthermore  corroborative  proof  that  said  postpone- 
ment of  the  Virginia  Proceedings  was  at  the  request 
of  said  John  B.  Moon  representing  the  other  side,  is 
to  be  found  in  the  two  following  letters  from  plaintiff- 
in-error's  then  counsel,  Hon.  Armistead  C.  Gordon  and 
Frederick  Harper,  of  Daniel  and  Harper,  aforesaid, 
found  on  pages  417-419,  Volume  II  of  this  Brief. 

LETTERS  RE    NOTK^E    GIVEN    OTHER  SIDE  OF 
1901  PROCEEDINGS,  pp.  117,  US,  119  Appendix. 

By  Counsel  for  Plaintitf :  Mr.  Chaloner,  I  liand  you 
a  couple  of  letters  enclosed  in  an  envelope — will  you 
please  describe  them? 

( By  Counsel  for  Defendant :  We  make  tlie  same  ob- 
jection to  comment  on  these  letters  and  their  introduc- 
tion, or  not  being  shown  to  be  material  to  this  issue. ) 

A.  This  letter  is  marked  in  blue  pencil  by  me,  "9-27-01" 
and  has  in  blue  pencil, "'/'e  Hon.  John  B.  Moon,  represent- 
ing the  other  side  in  the  November  0,  1901,  Proceedings." 
It  is  addressed  to  me  in  the  liandAM'iting  of  the  Hon. 
Armistead  C.  Gordon,  then  of  counsel  for  me  in  the  1901 
Proceedings  aforesaid,  and  is  addressed,  "John  Arm- 
strong Chanler,  Esq. ;  Cobham,  Albemarle  County,  Va.," 
and  |)ostmarked  "Staunton,  September  27,  or  27,  (Sep- 
tembei'  is  hardly  legible),  1901,  and  the  letter  is  dated 
Septend)er  27,  1901,  Staunton,  Va.,  and  reads  as  fol- 
lows : 


515 

"Jolm  Armstrong  Cliaiiler,  Esq., 
Cobliam,  Va. 

"Mj  Dear  Mr.  Chanler :  I  Avrote  you  on  the  23rd  inst. 
I  have  jnst  received  the  enclosed  letter  from  Mv.  Harper. 
With  it  I  hand  you  copy  of  mine  to  him.  Capt.  Woods, 
to  whom  I  wrote  on  same  case  as  to  Mr.  Harper,  has  not 
yet  replied. 

"Please  pardon  my  slowness.  I  have  been  unusually 
busv. 

9,' 

Sincerel}^,  your  friend, 

"ARMISTEAD  C.  GORDON." 


Here  follows  the  enclosed  copy  referred  to  by  the  said 
Hon.  Armistead  C.  Gordon,  of  his  letter  to  Fred  Harper, 
a  partner  of  the  late  Jno.  W.  Daniel,  United  States  Sena- 
tor from  Virginia. 


"Fred  Harper,  Esq., 
Lynchburg,  Va. 

"Dear  Mr.  Harper  : — 

"In  a  recent  letter  from  Mr.  John  Armstrong  Chan- 
ler, whose  case  against  Mr.  T.  T.  Sherman  as  Committee 
is  now  pending  in  the  Circuit  Court  for  the  Southern 
District  of  New  York,  he  requests  me  to  ascertain  from 
you: 

"1.  From  Avhom  did  the  knowledge  of  the  request  of 
Mr.  Chanler's  New  York  Committee,  or  of  liis  brothers 
that  the  hearing  on  his  sanity  before  the  Albemarle  Court 
be  postponed,  come  to  you? 

"2.  From  whom  did  the  proposition  that  he  should  go 
North  in  person  to  meet  'the  other  side,'  come  to  you 
and  upon  whose  authority  was  this  proposition  made? 


516 


'^In  reply  to  these  questions  from  Mr.  Chaiiler  I  wrote 
him  a  short  time  ago  that  mj'  recollection  was  that  the 
re(iuest  for  an  adjournment  of  the  hearing  in  Charlottes- 
ville, came  to  me  throiif/h  Capt.  Woods  from  ^fr.  John  B. 
Moon,  as  con  use]  for  and  on  Ixhalf  of  'tlie  other  side' — 
either  the  then  committee,  Mr.  P.  H.  Butler,  or  Mr.  ('hau- 
ler's brother;  and  that  it  was  Judge  Van  Wyck's  proposi- 
tion through  you  that  Mr.  Chanler  should  go  North. 

''Mr,  Chanler  wishes  especially  to  know  now  from  you 
if  I  am  correct  as  to  the  last  named  statement,  and  if  so, 
what  was  the  date  of  Judge  Van  Wyck's  letter,  and  how 
soon  thereafter  were  A[essrs.  Evarts,  Tracy  &  Sherman, 
informed  that  Judge  Van  Wyck's  proposition  was  de- 
clined by  ]Mr.  Chanler's  attorneys  in  Virginia.  You  can 
doubtless  get  all  this  from  your  tile. 

"I  will  forward  your  reply,  when  received,  to  Mr. 
Chanler. 

"^A'ith  kind  regards  for  yourself  and  for  Major  Daniel, 
I  am, 

"Very  trul}^  yours. 


Attached  is  the  original  letter  from  Mr.  Fred  Harper, 
of  Daniel  and  Harper,  to  Hon.  A.  C.  Gordon,  which  has 
as  its  heading — 


'& 


''DANIEL  &  HARPER, 
"Jno.  W.   Daniel,  Fred  Harper. 

"Attorneys  at  Law,  Lynchburg,  Va." 
and  is  dated  Sept.  24th,  11)04,  and  reads  as  follows: 

"Hon.  A.  C.  Gordon, 
Staunton,  Va. 

".Afy  Dear  Mr.  Gordon:— 

"Replying  to  your  favor  of  the  23rd  instant,  I  beg  to 


517 


say  that  an  oxamiiiatioii  of  our  tiles  discloses  tlie  fact 
that  continuance  of  the  Procccdiiif/s  in  Chdrlottesmlle 
were  had  at  the  siif/gcstion  of  Mr.  Moon,  i-epresentinf/ 
M}\  Butler.  The  reason  of  Mr.  Moon's  re(iuest  was  that 
Mr.  Chanler's  family  desired  an  opportiinitii  to  l)e  pre- 
sent at  the  hearinij. 

"As  to  the  second  matter,  a  letter  from  ditdf/e  Van 
Wi/cJ:  to  us,  under  date  of  Xorenihe)-  2d,  11)01,  contained 
the  suggestion  that  Mr.  Chanler  go  to  Philadelphia  to 
submit  to  an  examination  for  the  satisfaction  of  his 
faniiJij.  This  proposition  was  made  to  Judge  Van  AVyck 
by  Mr.  Erarts,  representing  the  family.  In  a  letter 
which  we  wrote  to  Judge  Van  Wyck,  nnder  date  of  Nov- 
ember 4th,  1901,  we  advised  him  that  we  thought  the 
suggestion  'unreasonable.'  So  far  as  our  files  show, 
that  was  the  last  said  in  correspondence  about  Mr. 
Chanler's  proceeding  North  for  an  examination  by  phy- 
sicians chosen  h}/  his  faniilt/.  Trusting  that  this  informa- 
tion will  be  satisfactory  to  you. 

"Major  Daniel  is  in  the  office  and  joins  me  in  best 
wishes  to  von.     I  am, 

"Verv  trulv  vours, 
(Signed)  FRED  HAKPEK.'" 


u/  u; 


We  now  insert  said  Louisa  C'ountv  Proceedings. 

Geo.  ir.  Morris,  Trustee  v.  JoJm  Armsfronf/  Chanler, 
(copies  of  Decrees.) 

Virginia  : 

At  a  Special  Term  of  the  Circuit  Court  for  the  County 
of  Louisa,  continued  and  held  at  the  Court  House  there- 
of on  Tuesday,  the  22nd  day  of  May,  1900. 

Present,  the  Hon.  John  E.  Mason,  Judge  of  this  Court. 


518 
Geo.  W.  Morris,  Trustee,  Plaintiff. 

V. 

John  Armstrong  Chanler,  a  person  of  nnsound  mind, 
George  Perkins,  Trustee,  and  Julia  M.  Morris,  in 
her  own  light  and  as  Executrix  of  Richard  0. 
Morris,  dec'd..  Defendants. 

F.  W.  Sims,  who  had  been  at  Rules,  held  in  the  Clerk's 
Office  assigned  as  guardian  ad  litem  for  said  insane  de- 
fendant John  Armstrong  Chanler,  having  declined  to  act, 
John  B.  Moon,  a  discreet  and  competent  attorney  at 
law  is  assigned  as  such  guardian  ad  litem  for  said  insane 
defendant,  with  leave  to  file  his  answer  to  the  plaintiff's 
hill,  which  is  filed  accordingly  and  the  plaintiff  replies 
generally  thereto;  and  it  further  appearing  that  said 
Chanler  has  been  also  duly  proceeded  against  in  the  mode 
prescribed  by  law  as  to  non-resident  defendants  by  order 
of  publication  published  and  posted  as  the  law  directs 
and  which  has  been  completed  for  more  than  fifteen  days, 
and  the  unrecorded  deed  between  Richard  O.  ]Morris 
and  wife  and  the  said  Chanler,  dated  November  3rd, 
1894,  a  copy  of  which  is  exhibited  with  the  bill,  together 
with  the  contract  between  the  parties  on  which  said  deed 
was  based  dated  September  17th,  1894,  being  this  day 
produced  and  filed  by  said  Perkins,  trustee,  by  leave  of 
Court. 

IN  VACATION 

Geo.  W.  Morris,  Trustee, 

vs. 
J.  A.  Chanler,  and  Others. 

This  cause  came  on  this  dav  to  be  heard  in  vacation, 
pursuant  to  the  decree  of  March  22nd,  1901,  upon  the 


519 


papers  formerly  read  and  the  affidavit  of  Jolui  B.  Moon, 
Guardian  ad  litem  of  tJic  insane  defendant,  John  Arm- 
stroiif/  (lianicf,  tl)is  day  filed,  and  npon  the  copy  of  the 
Kecord  and  judicial  Proceedini>>>  of  the  ]S'ew  York  Su- 
preme Court  of  the  County  and  State  of  Ne^y  York 
in  the  matter  of  the  said  John  Armstrong'  Chanler,  an 
alleged  incompetent  person,  also  this  day  filed,  which 
Record  and  Proceedings  are  duly  attested  and  exem- 
plified in  the  mode  prescribed  by  law  for  their  admis- 
sion as  evidence  in  the  Courts  of  this  State  and  show 
that  the  said  Chanler  was  by  the  said  wSupreme  Court 
of  the  State  of  New  Y^ork  on  the  23rd  day  of  June,  1899, 
duly  adjudged  a  lunatic  and  person  of  unsound  mind; 
and  the  report  of  George  Perkins,  trustee,  dated  May  4th, 
1901,  and  was  argued  by  counsel ;  on  consideration  where- 
of it  appearing  to  the  Court  that  the  decree  of  sale  en- 
tered in  this  cause  at  the  Special  May  Term,  1900,  of 
this  Court  was  entered  by  the  consent  of  the  said  Moon, 
as  guardian  ad  litem  of  the  said  (lianler,  in  so  far  as 
the  said  decree  prescribed  the  terms  upon  which  the 
Hawk  wood  lands,  in  the  Proceedings  mentioned,  should 
be  sold  by  the  trustees,  Geo.  W.  ^lorris  and  Geo.  Per- 
kins, who  were  directed  to  sell  said  lands,  but  by  inad- 
vertence there  was  an  omission  to  expressly  recite  therein 
that  the  same  was  entered  with  tlie  consent  of  the  said 
guardian  ad  litem,  in  so  far  as  it  varied  the  ternss  upon 
which  the  deed  of  trust  upon  the  said  lands  prescribed 
a  sale,  thereupon  on  motion  of  said  guardifin  ad  litem, 
and  bv  his  consent,  now  given,  as  shown  l)v  his  endorse- 
ment  on  this  decree,  it  is  now  ordered  by  the  Court 
that  said  decree  entered  at  the  ]May  Special  Term,  1900, 
be,  and  the  same  is  hereby,  corrected,  with  respect  to 
the  said  omission,  so  as  to  expressly  declare  and  show, 
with  like  effect  as  if  expressly  recited  in   said  decree 


520 

wlieii  entered,  that  the  said  deeree  was  entered  by  con- 
sent of  th(^  guardian  ad  Jifcin  as  aforesaid. 

And  it  further  appeariu**-  to  the  Court  that  the  said 
niodifloation  of  the  terms  of  sale  prescribed  in  said  deed 
of  trust  was  to  the  interest  and  advantage  of  all  parties 
interested  in  the  said  land,  and  that  the  said  J.  A.  Chan- 
ler  ^^■as  shown  to  have  been  duly  adjudi^ed  a  person  of 
unsound  mind  by  a  court  of  competent  jurisdiction,  the 
Court  doth  adjudge,  order  and  decree  that  the  sale  set 
forth  in  the  report  of  the  trustee,  George  l*erkins,  lile<l 
March  22nd,  1901,  be,  and  the  same  is  hereby,  now  tinally 
ratified,  approved  and  confirmed  in  all  respects;  and  the 
said  (Jeorge  Perkins,  trustee,  is  directed  to  proceed  to 
carry  into  effect  the  provisions  of  the  decree  entered  in 
this  cause  on  March  22nd,  1901. 

And  the  Court  doth  further  adjudge,  order  and  de- 
cree that  unless  within  ten  days  from  this  date,  posses- 
sion of  the  Hawkwood  lands  in  the  Proceedings  men- 
tioned, be  delivered  to  the  purchaser,  Geo.  M.  Pirowne, 
tluMi  the  clerk  of  this  Court  shall,  upon  the  application 
of  said  Browne  or  his  counsel  issue  a  writ  of  possession 
recpiiriug  the  Sheriff  of  Louisa  County  to  forthwith  de- 
liver possession  of  said  lands  to  said  Bro\\'ne,  it  appear- 
ing that  notice  of  the  application  to  the  Court  for  the 
awarding  of  said  writ  has  been  given  to  Julian  :Morris. 

And  the  said  Trustee,  George  Perkins,  is  directed,  after 
paying  costs  as  heretofore  ordered  to  i)ay  over  all  monies 
now  or  hereafter  coming  into  his  hands  from  the  sale 
of  Hawkwood  to  the  Executors  of  Mrs.  Julia  ^Nl.  :Morris, 
in  the  deed  between  him  and  John  Armstrong  Chanler, 
dated  November  3rd,  1894,  in  the  Proceedings  referred 
to,  until  said  debt,  as  set  forth  in  the  plaintiff's  bill  shall 
be  fully  paid,  and  the  remainder  of  the  purchase  money 
he  shall  hold  subject  to  the  order  of  the  Court. 

J.  E.  MASON. 

Mavll,1901. 


521 


The  foreuoiiiii  (Iccri'c  is  this  Uth  day  of  May,  11)01, 
hereby  (MM-tititMl  to  the  (Merk  of  the  (Micuit  (\mrt  ol' 
Louisa  to  he  by  him  eiit<M-e<l  of  reeoi-d  as  tlie  law  directs. 

.1.  E.  MASON. 

Virginia:     In  Lonisa  ('ireiiit  Couit  Clerk's  Office,  May 

13th,  1901., 

The  forejioiiiii  ^^aeatiou  Decree  was  this  day  received 
iu  said  oftice  and  entered  of  record  as  the  law  directs. 

Teste: 

W.  R.  GOODWIN,  Clerk. 
( Endorsed  on  decree. ) 

"We  consent  to  this  decree  and  agree  that  the  Court 
shall  enter  the  same  in  vacation  without  further  notice 
to  us. 

JOHN  B.  MOON,  CrcVn  Ad  litem. 

For  J.  A.  Chanler. 
GEO.  PERKINS,  Trustee. 
R.  L.  GORDON, 

W.  E.  BIBB,  }  For  G.  H.  Broione. 

G.  W.  MORRIS." 

At  a  Circuit  Court  for  the  County  of  Louisa,  begun 
and  held  at  the  Court  House  thereof  on  Friday,  the 
20th  day  of  September,  1901. 

Present,  the  Hon.  John  E.  Mason,  Judge  of  this  Court. 

Geo.  W.  Morris,  Trustee, 

vs. 
J.A.  Ch(iul(rc(:Als. 

This  dav  the  Petition  of  Prescott  Hall  Butler,  as  Com- 
mittee  of  the  estate  of  John  Armstrong  Chanler  was, 


522 


by  leave,  filed  in  pursuance  of  notice  published  in  the 
Daily  Progress,  a  newspaper  published  in  Charlottes- 
ville, Virginia,  once  a  week  for  four  successive  weeks, 
prior  to  this  date,  as  prescribed  by  law,  which  Petition 
prays  that  the  said  Committee  may  be  authorized  to 
collect  the  fund  involved  in  this  cause  belonging  to  the 
estate  of  J.  A.  Chanler,  as  well  as  to  sue  for,  recover 
and  receive  all  money  and  personal  property  belonging 
to  said  John  Armstrong  Chanler  in  Virginia;  also  by 
leave  of  the  Court  the  answer  to  said  Petition  which 
is  asked  to  be  read  as  a  cross-bill  in  this  case,  signed 
by  John  Armstrong  Chanler  by  counsel,  in  which  it  is 
alleged  that  said  Chanler  is,  and  has  been  a  sane  man, 
and  as  such  is  entitled  to  control  and  manage  his  own 
estate,  is  filed;  which  answer.  Petition  and  cross-bill 
is  accompanied  by  sundry  exhibits  also  filed  therewith. 

On  consideration  whereof  and  of  the  papers  formerly 
read,  and  th(^  final  report  of  George  Perkins,  Trustee, 
dated  August  16,  1901,  this  cause  was  this  day  heard 
upon  the  said  report,  and  was  argued  by  Counsel.  And 
the  Court,  approving  said  report,  which  is  sustained  by 
proper  vouchers,  and  to  which  there  is  no  exception, 
doth  confirm  the  same  in  all  respects : 

And  the  Court,  without  passing  on  any  question  in 
said  Petition  and  pleadings,  doth  by  consent  of  Counsel 
make  this  a  vacation  case  to  be  heard  in  vacation  by 
consent  of  counsel  on  any  new  pleadings  or  evidence 
that  may  be  filed  within  the  ensuing  ninety  (90)  days. 
And  any  decree  that  nmy  be,  by  consent  of  counsel  to  a 
hearing  in  vacation,  entered  by  the  Court  in  vacation 
shall  be  as  valid  and  effective  as  though  entered  in  term 
time,  it  being  understood  that  such  hearing  in  vacation 
shall  only  be  at  such  time  and  place  as  counsel  shall 
agree  upon ;  and  leave  being  reserved  to  any  party  in 
interest  to  file  any  proper  exception,  demurrer,  answer 


523 


or  plea  to  either  of  said  Petitions  within  tlie  next  ninety 

(90)  days. 

J.  E.  MASON. 

IN  VACATION. 

Georf/c  W.  Morris,  Trustee, 

ar/ainst 
J.  A.  ChanJer  and  Others. 

This  canse  came  on  this  day  to  be  heard  in  vacation, 
by  consent  of  Connsel,  in  pnrsuance  of  the  provisions 
of  the  decree  entered  herein  on  the  20th  day  of  Sep- 
tember, 1901;  npon  the  papers  formerly  read  and  also 
npon  the  snpplemental  Petition  and  application  of  P. 
H.  Butler,  former  Committee  of  J.  A.  Chanler,  under 
order  of  the  Supreme  Court  of  the  State  and  County 
of  New  York,  filed  at  December,  1901,  together  with  the 
exhibit  therewith,  of  the  Record  of  the  Proceedings  had 
in  the  Supreme  Court  of  the  State  of  New  York  on  the 
19th  day  of  November,  1901,  tiled  December  13th,  1901, 
from  which  it  appears  that  the  said  P.  H.  Butler  has 
been  relieved  and  removed  as  Committee  of  J.  A.  Chan- 
ler, by  the  order  of  the  said  Supreme  Court  of  New 
York  for  the  C^ounty  of  New  York,  and  that  his  powers 
as  such  Coinmittee  have  ceased,  which  petition  further 
prays  that  the  application  and  petition  tiled  by  him  at 
the  September  term,  1901,  of  this  Court  be  discontinued 
and  dismissed;  also  upon  the  Transcript  of  the  Record 
of  the  Proceedings  had  in.  the  County  Court  of  Alhe- 
marle  County,  Virginia,  at  its  Novemher  term,  1901, 
in  the  matter  of  the  Petition  of  C.  Puffin  Randolph,  filed 
in  said  Court  under  the  provisions  of  Section  1698  of 
the  Code  of  Virginia,  alleging  that  said  J.  A.  Chanler, 
a  resident  of  Alhemarle  County,  had  been  adjudged  and 


524 


coiipiicd  (IS  (I  Itinalic  in  ait  Asi/liiiii  in  Xcir  York  and 
that  he  was  suspected  of  heinf/  insaiie,  and  praijiufj  said 
County  Court  to  e.rauiinc  i)ito  his  state  of  mind  and 
determine  whether  a  Committee  of  his  estate  and  per- 
son should  he  appoinltd  (Did  it  appearinf/  from  said 
eertified  rroceedin(/s  that  said  Countjj  Court  of  Alhe- 
marlc,  a  Court  of  Record  hariuf/  jurisdiction  in  the 
prcmiscH,  did  hi/  its  order,  entered  on  the  i\th  day  of 
NoremJ)er,  1!)01,  adjiuhje  and  decree  as  follows: 

''The  said  Court  Jiarinf/  heard  and  considered  the  evi- 
dence of  the  u-itnesses  produced,  hoth  medical  men  and 
other  citizens;  and  Jiariny  considered  the  several  medi- 
cal opinions  filed  touchin;/  said  CJianler's  mentaliti/, 
and  havinf/  examined  the  said  J.  A.  Chanler,  is  of  the 
opinion  that  said  John  Armstrou}/  Chanler  is  a  sane 
many  capable  of  takinf/  care  of  his  person  and  nianaf/ing 
his  estate,  therefore  the  Court  doth  adjudf/e  that  there 
is  no  occasion  for  appointment  of  a  Committee  of  his 
person  and  estate r' 

AVliicb  said  Record  of  said  Conntv  Conrt  of  Albe- 
nuu-le,  filed  in  fliis  cause  on  13tli  December,  1901,  is 
dnlv  certified  and  attested  bv  tbe  Clerk  of  said  Court; 
and  tbis  Court  bavinji'  read  and  considered  tbe  Tran- 
script of  tbe  Proceeding's  of  said  County  Court  of  Albe- 
marle Count}',  to  wbicb  are  attacbed  copies  of  tbe  evi- 
dence and  exbibits  adduced  before  said  Court,  wbicb 
evidence  and  exbibits  were  duly  filed  in  tbis  cause  on 
tbe  13tb  of  December,  1901,  and  tbis  cause  was  argued 
by  counsel,  upon  consideration  thereof  the  Court  doth 
order  that  the  Petition  and,  Application  of  said  P.  H. 
Butler,  Committee  as  aforesaid,  filed  in  this  cause  at 
September  term,  1901,  of  this  Court  stand  discontinued 
and  disinissed  for  tbe  reasons  stated  in  bis  supplemental 
Petition  filed  at  December  Rules,  1901,  and  the  Court 
doth  further  adjudye,  order  and  decree,  inasmuch   as' 


525 


John  Anii^irohii  Chunlcr  has  hvcn  (t(l/ii(1(/(<I  and  de- 
clared to  he  a  sane  ukdi,  capahJc  of  taki)i(/  care  of  his 
perso)i  and  cstalc,  hii  ihc  CoHnli/  Court  of  Albentarle 
Count ji  {of  which  County  said  ./.  .1.  ChanJer  is  a  rrsi- 
doit)  that  Micajali  Woods,  Attorney  for  .John  Ariii- 
stronjn  ( Mianler  \n\  and  is  lieroby.  antliorizcd  to  with- 
draw from  the  ])apei-s  of  this  canse  the  certilieate  of 
deposit  of  the  People's  National"  Bank  of  Charlottes- 
ville, Va.,  dated  the  17th  dav  of  Jnne,  1001,  for  the  sum 
of  |1  ,:U4. r)S,  and  collect  the  same,  less  |148.i'l,  which 
he  shall  re-deposit  to  the  credit  of  the  cause,  said  de- 
posits haviui;-  been  made  1)y  (Jeorge  Perkins,  Trustee 
in  this  cause,  and  being  the  net  surplus  balance  re- 
maining on  han<l  unexpended,  from  the  proceeds  of  the 
sale  of  the  Hawkwood  estate  in  this  cause.  Said  Mica- 
jah  Woods,  Attorney  as  aforesaid,  out  of  the  proceeds 
of  said  certificate  of  deposit,  less  the  |14:8.21  aforesaid, 
shall  settle  any  unpaid  costs  in  the  cause,  <ind  shall  paij 
to  John  B.  Moon  the  sum  of  |250,  heinfj  fee  due  said 
Moon  and  his  associates  for  services  rendered  in  con- 
nection with  the  defence  and  protection  of  said  Chanters 
interests  in  tJiis  cause  in  wJiich  said  Moon  acted  as 
ffuardian  ad  J  item,  and  he  shall  account  to  the  said 
Chauler  for  the  residue  of  said  certificate  of  deposit. 

J.  E.  MASON. 
January  25,  1902.    ' 

The  foi-egoing  decree  is  this  25th  dav  of  January, 
1902,  hereby  certified  to  the  Clerk  of  the  Circuit  Court 
of  Louisa  County  to  be  by  him  recorded  as  the  law 
directs. 

J.  E.  MASON, 
Judge  of  the  Circuit  Court  of  Louisa  Co. 


526 


Virginia  :    In  Louisa  Circuit  Court  Clerk's  Office,  Jauu- 

arv  28th,  1902. 

The  foregoing  Vacation  decree  was  this  day  received 
in  said  office  and  entered  of  record  according  to  law. 

Teste: 
W.  R.  GOODWI:n:,  Clerk. 

I  hereby  certify  that  the  foregoing  are  true  copies  of 
the  five  decrees,  entered  on  their  respective  dates,  in  the 
suit  of  Geo.  W.  Morris,  Trustee  v.  John  Armstrong 
Ghanler,  et  als. 

P.  B.  PORTER, 
Clerk  of  Louisa  Circuit  Court,  Va. 

STATE  OF  VIRGINIA, 

County  of  Louisa,  to-wit : 

I,  John  Rutherfoord,  Judge  of  the  Circuit  Court  of 
the  County  of  Louisa,  hereby  certify  that  P.  B.  Porter, 
whose  name  is  signed  to  the  foregoing  certificate,  is, 
and  was  at  the  time  of  signing  the  same,  clerk  of  the  said 
Court,  duly  qualified  ;  that  his  attestation  is  in  due  form 
of  law ;  that  his  signature  is  genuine,  and  all  his  official 
acts  entitled  to  full  faith  and  credit. 

Given  under  my  hand  this  5th  day  of  June,  1916. 

JOHN  RUTHERFOORD. 

STATE  OF  VIRGINIA, 

County  of  Louisa,  to-wit : 

I,  P.  B.  Porter,  Clerk  of  the  Circuit  Court  of  the 
County  of  Louisa,  do  hereby  certify  that  John  Ruther- 
foord, Avhose  name  is  signed  to  the  foregoing  certificate, 
is,  and  was  at  the  time  of  signing  same.  Judge  of  the 
said  Court,  duly  qualified. 


527 


(jiveu  luidcr  my  hand  and  seal  of  said  Court  this  5th 
day  of  June,  191 G. 

P.  B.  PORTER, 

Clerk. 
(Seal.) 

As  well  as  the  testimony  afoi^esaid  of  said  Captain 
Mieajah  Woods  at  plaintiff -in-error's  Deposition  in  1908. 

TESTIMONY  OF  CAPTAIN  MICAJAH  WOODS,  AT 
THE  1908  DEPOSITION,  (Appendix  p]).  120-133.) 

Proceedings  of  1901  Bona  Fide,  Correct  and  in  Full 
Force. 

Testimony  of  Capt.  ^licajah  Woods,  201-218. 

MICAJAH  WOODS, 

being  first  cautioned  and  duly  sworn  to  testify  the  M'hole 
truth,  deposes  and  testifies  as  follows : 

1st  (J.  By  Counsel  for  Plaintiff  ;  Will  you  please  give 
your  name  and  age? 

A.    Mieajah  Woods,  64  years  old. 

2nd  Q.    Where  do  you  reside? 

A.     In  Charlottesville,  Va. 

3rd  Q.    What  is  your  profession? 

A.     Lawyer  by  profession. 

l:th  Q.  How  many  years  liave  you  been  practicing 
law? 

A.     I  came  to  the  bar  in  the  Fall  of  1868,  forty  years. 

5th  Q.  Have  you  been  continually  in  the  active  prac- 
tice of  law  since  that  time? 


528 


A.    I  have,  sir, 

Otli  Q.  As  a  lawyer  have  you  auy  official  capacity  in 
the  State  of  Virginia? 

A.  I  have  been  Commonwealth's  Attorney  for  the 
County  of  Albermarle. 

7th  Q.  How  long  have  you  been  Commonwealth's 
Attorney  for  the  County  of  Albemarle? 

A.  I  have  been  Commonwealth's  Attorney  of  Albe- 
marle County  ever  since  December,  1870. 

8th  Q.    Are  you  still? 

A.  Yes;  my  present  term  does  not  expire  for  three 
vears. 

9th  Q.    Are  you  an  officer  of  the  Virginia  Bar  also? 

A.  I  am  the  President  of  the  Virginia  State  Bar  As- 
sociation for  this  current  year,  1908-9. 

lOtli  Q.  In  what  courts  have  you  practiced  and  do 
you  now  practice? 

A.  I  practice  in  the  Circuit  Courts  of  Virginia,  a 
good  many  of  them ;  I  practice  also  in  the  Supreme  Court 
of  the  State,  and  also  practice  in  the  Federal  Court  of 
the  State. 

11th  Q.  How  long  have  you  known  the  i)laintiff 
in  this  case? 

A.  I  think  I  have  known  Mr.  Chauler  for  12  or  15 
vears. 

12th  Q.  Did  you  know  him  prior  to  Fel)ruary  13, 
1897? 

A.     I  did. 

PLAINTIFF'S  LETTER  OF   JULY  3RD,   1897,   RE- 
CEIVED IN  FALL  OF  1897. 

Testimony  Capt.  Micajah  AVoods,  202. 

13th  Q.  Did  you  receive  a  letter  from  plaintiff  in 
October,  1897? 


529 


A.  1  think  that  was  about  the  time  I  received  a  let- 
ter.    1  don't  reinend)er  the  exact  montli. 

14th  (I     How  did  von  get  tliis  letter,  Capt.  AYoods? 

A.  The  letter  was  brought  to  nie  by  a  New  York 
lawyer  by  the  name  of  Philip — ^Nlr.  Philip. 

15th  Q.  Did  you  know  the  handwriting  of  the  plain- 
tiff in  this  case,  :Mi'.  John  Armstrong  Chaloner? 

A.     Yes,  I  did. 

loth  Q.  Did  you  recognize  the  letter  that  you  received 
at  that  time  as  the  handwriting  of  :Mr.  John  Armstrong 
Chaloner? 

A.  My  recollection  is  that  the  letter  was  in  his  h;nid- 
writing. 

ITth  Q.  Do  you  recognize  this  as  the  letter  wdiich  you 
received? 

( Counsel  hands  letter  to  witness. ) 

A.  (  Witness  examines  letter  and  states)  :  Y'es,  that 
is  the  letter  that  1  received. 

(Counsel  for  Plaintiff :  I  now  tile  a  letter,  dated  July 
3rd,  1897,  and  offer  the  same  in  evidence  in  this  case, 
the  letter  being  addressed  to  the  Hon.  Micajah  Woods, 
Comnnrnwealth's  Attorney,  Charlottesville,  Albemarle 
Co.,  Ya.,  and  written  from  the  Society  of  the  New  Y'ork 
Hospital,  White  Plains,  New  Y^ork,  and  signed  "John 
Armstrong  Chaloner,  with  a  short  postscript,  sign(Hl 
"J.  A.  C."  and  mark  the  same  "Exhibit  K.") 

(Note — It  is  stipulated  that  a  copy  of  the  above  letter 
may  be  attached  in  place  of  the  original  and  the  original 
withdrawn:  the  original,  however,  to  be  ])roduce(l  by 
counsel  for  the  plaintiff  upon  the  trial  of  this  action. ) 

(The  same  stipulation  is  also  made  as  to  the  other  let- 
ters offered  in  evidence. ) 

18th  Q.  Capt.  Woods,  you  state  that  you  identify  this 
letter  as  the  letter  received  in  October,  1897? 

(34) 


530 


A.      J   do. 

lytli  Q.     Brought  .you  by  Mr.  Thilip  from  Mr.  Clial- 


oner? 


A.     Vcs,  sir. 

20tli  (^  After  receiviiii»-  this  letter  from  the  phiintitf, 
when  and  where  did  you  uext  see  him? 

A.  .Aly  reeolleetiou  is  that  I  next  saw  :Mr.  Chaioner 
in  the  fall  of  1901,  probably  about  the  month  of  Septem- 
ber. 

21st  (J.     Where  did  you  see  him? 

A.     In  this  county  and  in  my  office  in  this  city. 

22nd  (I  Did  you  represent  the  plaintiff  as  attorney 
in  the  Proceedini>,s  inciuirino-  into  the  sanity  (►f  John 
Armstroni;  Chaloner,  instituted  in  Albemarle  County, 
Virginia,  by  C.  Euffln  Randolph,  on  September  20,  1901, 
which  case  was  decided  on  November  0,  1901? 

A.  Yes,  and  associated  with  me  were  the  following 
gentlemen :  Senator  John  W.  Daniel  and  his  partner, 
Mr.  Fred  Harper,  and  ^Nlr.  Armistead  C.  Gordon,  of 
Staunton,  Va.,  as  attorneys  for  Mr.  John  Armstrong 
Chaloner. 

23rd  (I  Under  what  procedure  and  what  law  did  C. 
Kuffin  Kandolph  file  his  application  against  the  plain- 
tiff in  the  Albemarle  County,  Virginia,  Troceedings  in 
1901? 

A.  The  proceeding  was  instituted  in  the  Ccmuty 
Court  of  Albemarle  County,  Va.,  under  the  provision  of 
Section  1()98  of  the  Code  of  Virginia  of  1887,  which 
reads  as  follows : 

''Sec.  1698.  When  Committee  of  Residents  appointed 
in  other  cases. — If  a  person  residing  in  this  State  is  so 
found,  be  suspected  to  be  insane,  the  Court  of  the 
County  or  corporation  of  which  such  person  is  an  in- 
habitant, shall,  on  the  application  of  any  party  in- 
tei-ested,  proceed  to  examine  into  his  state  of  mind,  and 


531 


being  satisfied  that  he  is  iusaue,  shall  appoint  a  Com- 
mittee of  him." 

24th  Q.  Has  there  been  any  change  in  this  section 
since  said  Proceedings  were  had? 

A.  No,  sir ;  there  has  been  no  amendment  of  that  sec- 
tion. 

25th  Q.    Any  change  at  all? 

A.     No,  sir ;  no  change  whatever. 

26th  Q.  Was  the  Coiintv  Court  of  Albemarle  Countv 
a  Court  of  record? 

A.     It  was. 

27th  (2-  Was  it  the  Court  of  the  County  of  which 
John  Armstrong  Chaloner  was  then  an  inhabitant? 

A.     Yes,    sir. 

28th  Q.  Under  the  Law  and  practice  of  Virginia  was 
this  application  sufficient  and  regular  in  form? 

(By  Mr.  Choate:     Objected  to  as  too  general.) 

(Note — It  is  conceded  that  the  witness  is  qualified  as 
an  expert  to  testify  and  no  objection  is  raised  on  that 
ground. ) 

A.  We  gentlemen  who  represented  Mr.  Chaloner  in 
that  Proceeding  as  attorneys,  considered  it  a  regular 
and  proper  Proceeding  under  that  Statute. 

29th  Q.  And  do  you  now  consider  that  it  was  regular 
and  sufficient? 

A.    I  do. 

30th  Q.  Did  the  plaintiff,  John  Armstrong  Chaloner, 
appear  in  the  Albemarle  County,  Va.,  Proceedings  in 
1901  in  person. 

A.  He  appeared  in  person  and  was  examined  by  the 
Court. 

31st  Q.     In  the  answer  filed  by  the  defendant  in  this 


532 


case  it  is  said  tliat  these  Albemarle  County,  Virginia, 
Proceedings  of  1901  should  be  vacated  and  set  aside  for 
the  reason  that  the  petition  was  not  sworn  to,  or  other- 
wise verified,  what  have  you  to  say  about  this? 

A.  There  is  nothing  in  the  statute  under  which  the 
Proceeding  was  instituted  that  required  the  Petition 
to  be  sworn  to. 

32nd  Q.  Is  there  any  provision  or  any  Law  in  Vir- 
ginia which  would  require  that  this  should  be  sworn  to? 

A,  Not  that  I  know  of  in  a  Proceeding  of  that  char- 
acter. 

33rd  Q.  In  the  same  answer,  it  is  said  that  these 
Albemarle  County,  Virginia,  Proceedings  should  be 
vacated  and  set  aside  because  the  said  petition  or  ap- 
plication of  Cary  Ruffin  Randolph  was  not  presented 
to  the  County  Court  of  Albemarle  County,  but  it  was 
presented  to  the  Hon.  John  M.  White,  Judge  of  said 
Court;  what  have  you  to  say  about  this? 

A.  The  Petition  in  the  case  referred  to  was  ad- 
dressed to  the  Judge  of  the  Court,  as  is  the  practice 
and  custom  in  Virginia,  in  a  Proceeding  of  an  Equitable 
character.  In  my  long  experience  as  a  practicing  at- 
torney in  the  Courts  of  this  State,  I  do  not  recall  that 
any  bill  in  Chancery  or  any  Petition  in  an  Equitable 
Proceeding  was  addressed  otherwise  than  to  the  Judge 
of  the  Court.  There  is  a  distinction  in  Virginia,  which 
still  holds  between  the  Equitable  and  the  Legal  juris- 
diction of  our  Courts,  and  in  an  Equitable  Proceeding 
— that  is,  suits  in  Chancery,  Petitions  of  an  Equitable 
character — the  practice  is  uniform  and  unbroken  so  far 
as  I  know,  for  all  the  Proceedings  to  be  addressed  to 
the  Judge  of  the  Court. 

34th  Q.  Are  Minor's  Institutes,  Barton's  Chancery 
Practice  and  Sands'  Suits  in  Equity  considered  legal 
authorities  in  Virginia? 


533 


A,  They  are  considered  leijal  authorities  and  the 
forms  that  are  given  in  all  of  said  works  show  that  the 
custom  and  practice  in  Virginia  is  to  address  the  plead- 
ings to  the  Judge  of  the  Court. 

35th  Q.  What  was  the  object  of  the  Proceedings  in- 
stituted by  Gary  Ruftin  Randolph,  in  Albemarle  County, 
Va.,  on  September  20,  1901? 

(  By  Mr.  Choate :  I  object  to  that  as  opening  for  the 
contents  of  a  writing.) 

A.  The  Petition,  according  to  my  recollection,  shows 
upon  its  face  the  object  of  the  Petition,  namely,  to  ascer- 
tain bv  an  investigation  whether  a  Committee  should 
be  appointed  to  take  charge  of  Mr.  Chaloner's  estate. 

36th  Q.  Did  C.  Ruftin  Randolph,  in  person,  sign  the 
Petition  or  application  filed  in  Albemarle  County,  Vir- 
ginia, on  September  20,  1901,  asking  the  Court  to  ex- 
amine into  the  state  of  mind  of  John  Armstrong  Chal- 
oner  and  determine  whether  a  Committee  of  his  person 
and  estate  should  be  appointed? 

A.     My  recollection  is  that  he  did. 

37th  Q.  Did  C.  Ruffin  Randolph,  who  filed  the  ap- 
plication or  Petition  in  this  Proceeding,  have  such  an 
interest  in  the  matter  as  is  required  by  Section  1698 
of  the  Code  of  Virginia? 

A.  Mr.  Randolph  was  a  resident  of  this  State,  owned 
property  in  the  neighborhood  of  Mr.  Chaloner,  resided 
near  and  was  a  neighbor  of  Mr.  Chaloner's,  and,  of 
course,  was  interested  as  such  in  the  question  as  to 
whether  he  was  sane  or  insane. 

38th  Q.  In  your  opinion,  did  he  have  an  interest 
in  the  matter  such  as  to  meet  the  requirements  of  Sec- 
tion 1698  of  the  Code  of  Virginia? 

A.     It  was  the  opinion  of  the  attorneys  associated 


534 


with  liie  and  my  ()i)inioii  that  Mr.  Randolph  was  so  in- 
terested as  to  jnstify  him  in  tiling-  the  application  which 
was  made  to  the  Court. 

39th  Q.  And  also  is  it  now  yonr  opinion  that  he  had 
such  an  interest  in  the  matter? 

A.     Yes,  sir. 

40th  Q.  At  the  hearing  of  this  case,  on  November 
6,  1901,  in  the  County  Court  of  Albemarle  County,  Va., 
was  C.  Ruffin  Randolj^h  present  in  said  Coui-t  in  person 
as  petitioner  in  said  Proceedings? 

A.     Yes,  sir. 

41st  Q.  Was  this  Proceeding  instituted  and  con- 
ducted and  prosecuted  in  good  faith,  with  a  bona  fide 
intent  and  purpose  to  have  the  Court  examine  into  the 
state  of  mind  of  John  Armstrong  Chaloner  and  deter- 
mine whether  a  Committee  of  his  person  and  estate 
should  be  appointed? 

(By  Mr.  Choate:  I  object  to  that  as  leading  and 
calling  for  the  conclusion  of  the  witness  as  to  the  state 
of  mind  of  the  said  petitioner  who  brought  the  Proceed- 
ings, and  also  as  incompetent.) 

A.     It  was. 

42nd  Q.  Were  the  said  Albemarle  County,  Va.,  Pro- 
ceeding eae  parte? 

A.  Well,  sir,  the  Petition  was  filed  by  Mr.  C.  Rufan 
Randolph,  a  citizen  of  the  State  aind  a  resident  of  the 
County  of  All)emarle,  Va.,  and  Mr.  Chaloner  was  noti- 
fied of  it,  and  appeared  with  the  witness  before  the 
Court,  so  far  as  the  requirements  of  the  Statute  were 
concerned,  Mr.  Randolph  represented  the  people  of  the 
State  and  of  the  Countv,  and  Mr.  Chaloner  his  own  in- 
terests,  and  they  were  regarded  as  necessary  parties. 

43rd  Q.  Was  there  evidence  introduced  in  said  Al- 
bemarle County,  Virginia,  Proceedings  competent  and 


535 


sufficient  tiikIcm-  tlic  N'iriiiiiiji  Law  to  justify  the  decree 
tliat  was  entered  on  Xoveniher  (Jtli,  1901? 

A.  The  case  was  heard  \\y  .hidi>e  .John  M.  White, 
who  was  tlien  .Indjue  of  Albemarle  County  Court,  and 
now  is  .Jud^e  of  the  (Mrcnit  Court  of  Albemarle  County. 
He  is  repirded  as  one  of  the  soundest  and  best  judi>es 
in  the  State,  and  after  hearini;  the  testimony  his  decision 
was  that  there  was  no  occasion  for  the  appointment  ol" 
a  T'ommittee  of  the  person  or  estate  of  Mr.  Chaloner, 
and  the  Petition  was  dismissed. 

44tli  (}.  In  your  o])inion  was  the  evidence  competent 
and  sufficient  under  the  Viri>inia  Laws  to  justify  the 
deci-ce  that  was  entered? 

A.      It  was. 

45th  i}.  In  your  o])inion  the  County  Court  of  Albe- 
marle (.'ounty  has  jurisdiction  both  of  the  subject-matter 
and  the  ])arties? 

(By  Mr.  Choate:  Objected  to  as  calling-  for  conclu- 
sion. ) 

A.      In  my  opinion  it  had  jurisdiction. 

4()th  (^  It  is  also  alleged  in  said  answer  tiled  in 
this  present  case  that  no  process  or  notice  of  said  Albe- 
marle (\)unty,  A'irginia.  I*i'oceedings,  at  any  stage 
thereof  was  ever  issued  or  served,  and  no  such  process 
or  notice  was  ever  served  upon  the  stfid  plaintiff,  John 
Armstrong  Chaloner,  or  upon  IM-escott  Hall  Butler,  who 
it  alleges  was  then  a  citizen  of  New  York,  and  of  the 
Citv  and  Countv  of  New  York,  either  individuallv,  or  as 
Committee  of  the  person  and  ])i-operty  of  the  plaintiff, 
John  Armstrong  Chaloner,  or  u])on  this  defendant,  niean- 
ing  Thomas  T.  Sherman,  either  individually  or  as  Com- 
mittee of  the  person  and  property  of  the  said  plaintiff, 
meaning  John  Armstrong  Chabmer,  or  upon  any  of  the 


536 


heirs-at-law  or  next  of  kin  of  the  said  John  Armstrong 
(''hak)ner,  and  that  no  heirs-at-law  or  next  of  kin  of  the 
said  John  Armstrong  Chaloner,  and  neither  the  said 
Prescott  Hall  Butler,  nor  the  defendant,  Thomas  T. 
Sherman,  ever  appeared  in  said  Proceeding,  either  in- 
dividually or  as  Committee  as  aforesaid,  in  person,  or  by 
attorney  or  counsel ;  what  have  you  to  say  about  this? 

A.  Under  the  Statute  under  which  this  Proceeding- 
was'  instituted  there  is  no  provision,  and  was  no  provi- 
sion for  giving  notice  to  any  person,  except  the  party 
sus])ected  of  being  insane,  and  in  investigations  under 
(he  section  of  the  Statute  which  I  have  recited,  and 
under  investigations  before  Justices  touching  the  sanity 
of  a  person,  there  is  no  law  requiring  notice  to  be  given 
to  the  next  of  kin  or  the  parties  holding  the  estate  of 
the  party  suspected,  or  any  part  thereof. 

47th  Q.  Under  the  Law  in  Virginia,  then,  it  is  not 
necessary  to  give  notice  to  any  one  except  the  alleged 
incompetent  person,  is  that  the  effect  of  your  answer? 

A.     Yes,  sir. 

48th  Q.  In  this  case,  in  your  opinion,  is  it  material 
whether  notice  was  given  to  the  plaintiff,  John  Arm- 
strong Ohaloner,  or  not,  since  he  appeared  in  Court  at 
the  hearing  in  the  Albemarle  County  Proceedings,  in 
person  and  by  attorney  on  the  date  of  the  hearing  of 
the  matters  at  issue? 

A.  It  is  not  material.  /  irill  add  thai  his  appear- 
ance in  Court  was  evidence  of  the  fact  that  he  had 
notice. 

49th  Q.     And  was  or  not  that  sufficient? 

A.     That  was  sufficient. 

50th  Q. ,  Was  the  order  or  decree  entered  in  the  Albe- 
marle County,  Virginia,  Proceedings  on  November  (>, 
1001,  inquiring  into  the  sanity  of  John  Armstrong  Chal- 


537 


oner,  a  tinal  order  or  decree  on  the  merits  of  the  issue 
then  and  there  in  controversy? 

A,     I  now  so  regard  it. 

51st  Q.     Do  jou  now  so  regard  it? 

A.     I  now  so  regard  it. 

52nd  Q.  Has  said  order  or  decree  since  been  ap- 
pealed from,  annulled,  set  aside,  vacated,  reversed  or  in 
any  particular  modified  or  changed? 

A.  Not  that  I  have  ever  heard  of,  and  1  would  have 
known  of  an^'  such  appeal,  modification  or  change. 

53rd  Q.  Is  said  order  or  decree  still  in  full  force  and 
effect  as  rendered? 

A.     It  is. 

PROCEEDIXGS  OF  1901  POSTPONED  AT  RE- 
QUEST OF  REPRESENTATIVE  OF  OTHER  SIDE. 

Testimony  Capt.  Micajah  Woods,  213-218. 

54th  Q.  As  I  understand,  the  said.  Albemarle  County, 
Virginia,  Proceedings  were  instituted  on  the  20th  day 
of  September,  1901,  was  there  any  continuance  at  the 
request  of  any  one  I'epresenting  John  Armstrong  Chal- 
oner's  relatives,  or  his  then  alleged  Committee? 


( By  Mr.   Choate :     I   object  to  that  as  leading,  as 
lli]"^ 
fact. 


calling  for  a  conclusion  of  the  witness  on  a  matter  of 


A.  My  recollection  is  that  a  memhcr  of  this  har,  Mr. 
John  B.  Moon,  Avho  was  then  thought  to  represent  the 
Xew  Yorlx  Committee  of  Mr.  CUaloner,  requested  that 
the  matter  of  the  investigation  might  he  laid  over  and 
not  go)ie  into  at  the  October  Court. 


538 

55th  Q.  AVliat  did  Mr.  Moou  say  to  you  when  he 
called  ou  you  at  the  time  you  have  just  referred  to? 

( By  Mr.  Choate :  I  object  to  that  as  cailiug  for  hear- 
say and  as  immaterial. ) 

A.  I  do  not  remember  exactly  what  Mr.  :Moon  said. 
Mv  recollection  is  that  he  told  me  in  general  terms  that 
lie  had  been  approached  in  sonic  ivay  hjj  the  New  York 
('oinniittee  to  look  after  these  Proceedings  in  Virginia, 
an  dthat  he  wished  time  to  confer  with  the  Vommittee. 
I  don't  remember  that  he  told  me  directly  that  he  had 
been  eniiai;ed  as  counsel,  hnt  as  a  matter  of  conrtesg  to 
Mr.  Moon,  the  inrestigation  was  laid  over  for  a  month. 

56th  Q.  When  Mr.  :Moon  called  to  see  you  with  refer- 
ence to  this  continuance,  whom  did  he  purport  to  repre- 
sent, if  any  one? 

(By  Mr.  Choate:  I  object  to  that  as  calling  for  a  con- 
clusion and  as  leading.) 

A.  Mv  recollection  is  not  distinct  as  to  the  parties  or 
party  that  Mr.  Moon  represented,  according  to  his  state- 
ment. /  got  the  impression  from  n-ltat  he  said  that  he 
had  heen  reqnested  hg  the  Xew  York  Committee  to 
watch  the  Proceeding  in  Virginia  in  hehalf  of  the  Com- 
mittee and  in  hehalf  of  Mr.  Chaloners  family. 

57th  Q.    Who  is  Mr.  John  B.  :\Io(m? 

A.     He  is  an  attornev-at-law  in  this  citv. 

58th  Q.  Was  he  an  attorney-at-law  and  practicing  at- 
torney at  that  time? 

A.     He  was. 

59th  Q.  In  what  capacity  was  he  representing  the 
Committee  or  the  members  of  Mr.  Chaloner's  family,  if 
at  all? 


539 


( I>Y  Mr.  Clioatc:  I  objoct  to  that  as  calliiiii-  for  a 
coiichision,  also  as  iiicompetent,  the  witness  liavin^ii'  said 
that  he  <li(l  not  rcniciiiber  anythiug  elearly  more  than 
he  stated. ) 

A.  I  don't  remember  to  wliat  extent  he  said  he  rep- 
resented these  parties;  I  eoukl  not  state  after  this  lapse 
of  time  whether  Mr.  Moon  stated  to  me  specificaUy  liow 
or  to  what  extent  he  represented  the  parties  above  re- 
ferred to.  His  statements  to  me  led  me  to  believe  that 
in  a  i>eneral  way  he  iras  re<j nested  to  look  after  the 
Virf/inia  Proeee(lin(/s  in  behalf  of  the  .\<ir  York  Coiri- 
wittee  and  Mr.  Chaloners  fainilij,  but  to  what  extent 
or  how  employed  I  do  not  know,  and  did  not  know  then. 

GOth  Q.  Do  yon  recojiiiize  this  as  your  handwriting 
and  the  envelope  in  which  yon  returned  the  letter  yon 
identified  in  the  first  part  of  yonr  testimony  as  the 
letter  yon  received  from  Mr.  Chaloner  in  October,  1897? 

(Counsel  hands  envelope  to  the  witness,  Avho  ex- 
amines it.) 

A.  The  address  on  this  envelope  is  certainly  in  my 
handwriting,  bnt  I  oannot  say  with  absolute  certainty 
what  I  may  have  sent  in  this  envelope. 

(Counsel  for  Plaintiff:  1  now  file  this  envelope  and 
offer  the  same  in  evidence  in  this  case,  marked  "Plain- 
tiff's Exhibit  M.") 

(Bv  Counsel  for  Plaintiff :  We  offer  in  evidence  what 
purports  to  be  a  certified  and  exemplifi«Ml  co])y  of  the 
Petition  of  Cary  Puffin  Randolph,  Petitioner,  against 
John  Armstrong  Chaloner,  Respondent,  submitted  to 
the  County  Court  of  Albemarle  County,  Virginia,  to  the 


540 

Hon.  John  M.  White,  Judge  of  said  Court,  and  the  Pro- 
ceedings annexed  thereto  and  testimony  of  witnesses 
sworn  and  examined  under  the  examination  conducted 
under  said  Petition  and  purporting  to  be  a  complete 
record  of  the  examination  taken  on  that  occasion. ) 

61st  Q.  Captain  Woods,  is  that  a  true  copy  of  the 
Petition  of  Mr.  C.  Kuffin  Kandolph,  and  of  which  you 
have  been  speaking  here  in  your  testimony? 

( By  Mr.  Choate :  I  concede  that  it  is  a  true  copy  of 
the  Petition.) 

62ud  Q.  Is  this  Proceeding  here  shown,  and  marked 
"Plaintiff's  Exhibit  L,"  the  Proceeding  in  Albemarle 
County,  Virginia,  in  1901,  in  the  mouth  of  November, 
concerning  which  you  have  just  testified? 

(Note — It  is  conceded  on  the  record  that  it  is. ) 

63rd  Q.  I  read  you,  Mr.  Woods,  a  statement  which 
appears  on  the  record  to  have  been  made  by  you  as  fol- 
lows : 

"Hon.  Micajah  Woods  made  the  following 
statement  to  the  Court:  I  desire  to  present  to 
the  Court,  with  a  view  of  their  qualification,  my 
two  friends,  the  Hon.  Armistead  C.  Gordon  and 
Frederick  Harper.  He  then  further  stated  :  We 
desire  to  present  to  the  Court  the  following  Peti- 
tion, Exhibit  (A).  Your  Honour  is  aware  that 
tliis  Petition  was  prepared  and  it  was  expected 
that  it  would  be  filed  at  the  last  term  of  the 
Court,  but  owing  to  suggestions  made,  and  es- 
pecially the  suf/gestion  made  hy  Counsel  for 
Committee  of  Mr.  Chaloner,  the  Petition  was  not 


541 


filed  at  tlie  last  Court  but  it  was  understood  that 
it  would  be  heard  today,  and  we  are  here  today  to 
have  the  matter  investigated.     *     *     *" 

To  whom  did  you  refer  when  you  used  the  expression 
"Counsel  for  Committee  of  Mr.  Chaloner?" 

(By  Mr.  Choate :  I  object  to  this  on  the  ground  that 
this  is  cross-examination  of  the  plaintiff's  own  witness, 
and  as  leading.) 

A.     /  refer  to  Mr.  John  B.  Moon. 

64th  Q.  After  refreshing  your  recollection  by  read- 
ing this  extract,  are  you  now  prepared  to  say  whether 
at  that  time  you  considered  Mr.  John  B.  Moon  counsel 
for  the  Committee  of  Mr.  Chaloner,  in  New  York? 

(By  :Mr.  Choate:  T  object  to  that  as  calling  for  the 
conclusion  of  the  witness  on  a  matter  of  fact;  also  as 
leading. ) 

A.  ^ly  recollection  is  that  in  deference  to  the  request 
made  by  Mr.  ^loon,  no  Proceedings  were  had  at  the 
October  Court,  1901.  /  do  not  know  icliether  Mr.  Moon 
icas  counsel  for  the  New  York  Committee,  or  for  Mr. 
Chaloner s  famUij  when  the  case  was  called  in  Novem- 
ber, 1901,  for  investigation. 

65th  Q.  You  treated  him  as  such,  did  you  not,  in 
granting  the  adjournment? 

(By  Mr.  Choate:  I  object  to  that  as  immaterial  and 
as  leading.) 

A.  It  is  proper  to  state  that  Mr.  Moon  did  not  take 
part  as  counsel  for  anyone  in  the  investigation  before 


542 


the  Coiinly  rourl  in  November,  1901,    (iiid    J    do    not 
hiioic  ichethrr  he  teas  then  employed  as  counsel  or  not. 

Cross-Examiuation. 

1st  Q.  By  Counsel  for  Defendant:  No  notice  was  in 
fact  given  tlie  then  plaintiff  of  the  pendency  of  the  Albe- 
marle County  Proceedings  in  1901,  was  there? 

A.     So  far  as  I  know,  none  was. 

2n(l  il.  And  no  representative  of  the  Committee  ap- 
peared upon  the  hearing  of  the  case  in  November,  1901? 

A.     No,  sir.     And  further  this  deponent  saith  not. 

*  *  X-  •.{-  *  *  » 

\\\'  have  heretofore  taken  up  allegations  upon  the  part 
of  the  alienists  in  the  employ  of  the  Chanler  family. 
The  next  in  order,  after  those  of  said  Dr.  Samuel  B. 
Lyon,  Medical  Superintendent  of  "Bloomingdale,"  are 
those  of  Dr.  Austin  Flint,  Sr., — since  deceased — and  Dr. 
Carlos  F.  ^lacdonald. 

We  respectfully  submit  that  the  most  celebrated  case 
in  which  said  two  Medical  gentlemen  were  employed — 
and  then  as  now  for  the  prosecution — was  that  of  the 
People  of  New  York  m/ainst  H.  K.  Thait. 

To  the  bitter  end  said  ^Medical  gentlemen  maintained 
under  oath  and — highly  paid  testimony  at  tliat — that 
said  H.  K.  Thaw  ^^■as  a  dangerous  paranoiac  and  hope- 
lessly insane.  The  first  time  said  Thaw  got  a  chance  to 
appear  before  a  Lunacy  Commission  outside  the  State 
of  New  York — namely,  in  New  Hampshire — said  Thaw 
was  found  by  a  commission  fully  as  learned — fully  as 
eminent  professionally  as  any  said  Thaw  faced  in  any 
of  his  various  trials  in  the  State  of  New  York — sane  and 
safe. 

Later  on  said  Thaw  was  also  found  so,  in  his  trial  be- 
fore the   learned   Mr.   Justice   Hendricks   of   the   New 


543 

York  Supreme  Court  and  an  advisory  Jury.  Since  said 
tiiidinii'  notliiuii  has  occurred  to  indicate  that  the  said 
tindiniL!, — toiivthcr  with  said  New  Hampshire  tiudinj;- 
aforesaid — was  not  and  were  not  correct;  tlioui»h  had 
in  the  teeth  of  the  bitterest  opposition  \ipon  the  part 
of  said  Doctors  Flint  and  Macdonald. 

Mr.  Justice  Hendricks'  charge  to  the  jury  in  the  Thaw 
case  specitically  stated  that  the  jury  was  to  disregard  the 
claim  of  Dr.  Austin  Flint,  aS'/-.,  "tliat  the  (inestion  of 
Thaic's  saniti/  could  only  he  decided  hy  alienists/' 

This,  we  respectfully  submit,  sii/tports  our  contention 
in  our  said  hnr  hook,  ''The  Lunacy  Law  of  the  World;" 
which  was  in  turn  supported  by  the  Lancaster  Law  Re- 
riew,  aforesaid,  as  follows:  ''In  settins--  forth  the  im- 
portance of  allowino-  the  alleged  lunatic  an  opportunity 
to  ai)])ear,  the  author  says  :  "The  test  of  sidiiti/  is  a  mental 
test,  wholly  u-ithin  the  power  of  the  accused  to  accom- 
plish, and  witliout  any  icitnesses,  professional  or  lay, 
to  hack  him  up.  Suppose  two  paid  experts  in  insanity, 
in  the  pay  of  the  other  side,  swear  that  the  defendant 
cannot  tell  what  his  past  history  has  been — that  said 
defendant's  mind  is  a  total  blank  upon  the  subject. 
Would  that  professional  and  paid  and  interested  oath 
stand  against  the  defendant's  refutation  thereof  by  tak- 
ing the  stand  and  promptly  and  lucidly  giving  his  past 
history,  provided  he  were  afforded  his  legal  privilege  of 
taking  the  stand  in  place  of  being  kept  away  from  Court 
and  having  to  allow  his  liberty  and  property  to  be  per- 
jured away  from  him  in  his  enforced  absence?'  (p.  217).'' 

After  the  jury  had  brought  in  a  verdict  of  sanity, 
the  learned  Justice  went  on  to  say,  that  he  based  his 
decisions  that  Thaw  was  sane  on  his  own  judgment: 
"fortified  by  the  advice  of  a  very  intelligent  jury."  Mr. 
Justice  Hendricks  then  observed,  "We  have  had  men 
here  from  New  Hampshire,   not  Alicfiists  hut  men  of 


544 


Jurge  vxperience,  who  know  the  (lijfercnce  between  a 
sane  and  insane  man.  We  have  had  women  here  of  un- 
doubted high  repute,  who  also  testilied  that  this  man  is 
sane.  The  testimony  of  these  people  impressed  me  very 
much. 

"We  have  been  told  by  one  Alienist  (Dr.  Austin  Flint, 
Sr.)  that  it  was  impossible  for  a  layman  to  determine 
whether  or  not  a  man  has  paranoia ;  that  only  an  Alien- 
ist could  determine  that. 

^^I  want  to  say  here  a  ivord  about  Alienists  in  our 
Courts — that  it  is  fast  becoming  a  scandal.  If  this 
Court  and  jury  are  to  depend  upon  the  opinion  of  Alien- 
ists who  have  made  it  their  business  for  years  for  pay 
to  render  %L'hat  they  term  expert  testimony,  I  want  to 
say  that  opinion  to  me  has  no  value. 

"The  idea  that  a  Doctor  of  repute  should  interview 
witnesses  and  publish  his  opinion  in  the  public  prints 
and  help  in  the  preparation  of  a  case  and  then  go  on 
the  witness  stand  is  a  state  of  affairs  that  must  be  reme- 
died. 

"//  the  Medical  Profession  does  not  cure  this  evil,  I 
hope  the  Legislature  soon  will. 

"I  have  adopted  the  verdict  of  the  jury,  and  it  is  the 
opinion  of  this  Court  that  Harry  K.  Thaw  is  sane. 


'J 


We  respectfully  submit  that  the  remarks  from  the 
bench  upon  the  part  of  the  learned  Judge  Hendricks, 
supra — are  as  pertinent  to  the  action  of  said  Doctors 
Flint  and  Macdonald  in  taking  pay  from  the  hostile 
Chanler  family  in  order  to  swear  plaintiff-in-error  into 
a  living  death  for  life,  as  said  apposite  and  profound  re- 
marks of  the  aforesaid  trial  Judge  have — tested  by  time 
— and  said  Thaw's  perfectly  normal,  proper  and  law- 
abiding  conduct  since  said  trial  before  Judge  Hendricks 
— been  proved  to  be  in  the  aforesaid  instance. 


545 


Said  all('j2;atioiis — upon  the  part  of  said  Doctors  Flint 
and  Macdoiiald — arc  indexed  in  Ai)peiidix,  "Index  of 
Exhibits,"  p.  855,  as  fcdlows,  to  wit:  ''Exhibit  G,  Ex- 
amination of  Testimony  of  Doctors  Flint  and  MaCdon- 
ald,"  pp.  728-709. 

In  view  of  the  criticisms  of  said  tive  leadinji'  Law 
Reviews  npon  said  law  book  bv  plaintitt-in-error ;  sup- 
ported by  the  serried  array  <tf  leading  newsi)aper  criti- 
cisms on  both  sidles  of  the  Atlantic  npon  plaintift-in- 
error's  literary  work  since  publishini*  said  law  book ; 
and  also  supported,  we  respectfully  submit,  by  the  fol- 
lowing criticisms  of  plaintilf-in-error's  literary  work  be- 
fore— the  year  before — publishing  said  law  book ;  name- 
ly, those  of  the  New  Y(u-k  WorJr].  tlie  lialeigh,  N.  (\, 
Xcirfi  and  Ohscrrer,  and  the  Richmond,  Va.,  Evenhuf 
Journal;  u])on  ]daintitf-in-error's  satirical  History  of 
the  seamy — but  highly  gilded  side  of  the  New  York 
"Four  Hundred"  and  their  Legal,  Medical,  and  Finan- 
cial led-captains,  toad  eaters  and  parasites;  entitled 
"■Four  Years  BehimJ  ihe  Bars  of  'BJoomingdale  Or  the 
BankrKptejj  of  Lair  iu  Netr  York""  indexed  p.  851  in 
Appendix  as  follows:  Criticisms  of  Four  Years  Behind 
the  Bars  of  ''Blooiniuf/dale,''  190-199:  we  respectfully 
sul>mit  that  it  is  difficult  to  peruse  the  following  (dimax 
and  grand  pnale  of  the  allegations  of  said  Messrs.  Flint 
and  Macdonald,  without  a  smile.  Said  excerj)ts,  found 
on  ])ages  747-748  of  said  "Exhibit  G."— to  wit:  Dr. 
Carlos  F.  Macdonald  on  the  stand.  A.  "Yes,  sir;  and 
it  presents  all  the  ear  marks  of  typical  ])aranoia.  In 
the  physical  and  mental  condition  there  is  no  symptom 
lacking  to  make  it  a  perfectly  typical  case  of  paranoia. 
If  one  wanted  a  case  for  teaching  or  describing  a  case 
in  a  text-book,  you  could  not  describe  it  more  graphi- 
cally than  simply  taking  this  case  as  it  presents  itself. 
It  is  the  most  strikiuf/  case  of  paranoia  that  I  have  ever 
seen  in  my  life.     J  should  saj/  that  Mr.  Chanler  is  the 


54G 


most  ti/pical  classical  case  of  paranoia  that  I  have  ever 
seen.  I  have  seen  thousands  of  them.''  Affidavit,  May 
5,  1899,  of  Dr.  Carlos  F.  Macdonald,  ''Deponent  further 
savs — that  the  said  Chanler  is  now,  in  his  opinion,  a 
hopeless  paranoiac,  Ms  mental  disorder  being  incurable 
and  progressive/^ 

And  the  late  Dr.  Austin  Flint,  Sr.,  is  good  enough  to 
say — p.  748,  ibid. — said  Dr.  Flint  on  the  stand — Q. 
"And  from  what  form  of  insanity  is  he  now  suffering? 
A.  He  is  a  typical  case  of  what  is  known  as  paranoia, 
or  chronic  delusional  insanity.  Q.  In  your  opinion, 
Doctor,  is  that  progressive  and  incurable?  A.  It  is 
incurable  and  progressive  and  will  finally  terminate  in 
dementia.  If  I  may  be  allowed  to  say  those  cases  fre- 
quently live  for  a  very  much  longer  time,  quite  different 
from  paresis.  Q.  In  your  judgment,  is  Mr.  Chanler  now 
capable  of  taking  care  of  his  estate  and  person?  A. 
No,  sir ;  he  is  not.  Q.  Is  his  physical  condition  all  out- 
lined with  that  form  (paranoia)?  A.. /Nothing  could 
be  more  typical  of  that  form  of  the  disease.  It  is  an. 
absolutely  typical  case  (of  paranoia)  from  every  point 
of  view." 

Owing  to  the  fact  that  plaintiff-in-error  received  per- 
emptory orders  from  the  learned  Judge  Hand  of  the 
Federal  District  Court  for  the  Southern  District  of 
New  York  that  his  Deposition  then  in  progress  at  Char- 
lottesville must  be  immediately  terminated  or  the  case 
of  Chaloner  against  Sherman  would  be  sent  to  the  foot 
of  the  calendar — said  orders  being  received  in  January, 
1912 — plaintiff-in-error  was  not  quite  able  to  take  up  all 
of  the  allegations  of  said  Dr.  Carlos  F.  Macdonald,  in 
the  above  excerpt.  We  respectfully  submit  that  the 
evidence  above  given  shows  that  this  was  owing  entirely 
to  lack  of  time  to  reach  each  and  every  allegation  of 
said  Dr.  Macdonald  and  emphatically  not  to  disinclina- 
tion so  to  do. 


547 


Which  assertion,  wo  respectfully  submit,  is  fully  sub- 
stantiated by  the  fact  that  many  of  the  allegations 
against  plaintiff-in-error's  sanity — touched  upon  from 
another  angle — so  to  speak — are  indexed  in  Appendix, 
as  follows :  To  wit :  "Testimony  of  Drs.  Flint  and  Mac- 
donald  disproved  by  plaintiff-in-error,"  pp.  532-547.  We 
respectfully  submit  that  we  have  unmasked  the  chican- 
ery, deceit,  malice  and  ignorance  displayed  by  Doctors 
Carlos  F.  Macdonald  and  Austin  Flint,  Sr,,  in  their 
aspersions  upon  the  competency  and  sanity  of  plaintiff- 
in-error — in  the  above. 

Continuing  the  learned  counsel  for  defendant-in-error 
says,  p.  16  of  said  brief : 

"The  above  reasoning  appears  to  cover  all  the  special 
assignments  of  error  which  require  any  notice.  A  num- 
ber of  other  questions  were,  however,  discussed  at  the 
trial,  and  to  meet  the  possibility  that  discussion  in  re- 
gard to  them  may  lurk  undetected  by  us,  somewhere  con- 
cealed in  the  vast  bulk  of  the  plaintiff-in-error's  brief, 
we  feel  that  we  should  add  a  brief  discussion  of  each. 
Most  of  these  which  we  haven't  specifically  discussed  at- 
tack only  remarks  and  expressions  of  opinion  by  the 
Court  (Trial  Court)  which  were  not  in  any  true  sense 
rulings.  On  such  utterances  error  cannot  be  assigned 
( Gibson  v.  Luther,  196  Fed.  203. ) "  We  venture  to  say 
that  in  said  twenty-odd  "The  Parallels;"  covering  twen- 
ty-odd assignments,  no  attack  that  we  have  made  upon  a 
ruling — direct  or  indirect — of  the  Trial  Judge  Jias  been 
unsupported  by  a  ruling  directly  in  point,  and  in  our 
favor,  by  162  Fed.  Rep.  19,  the  learned  United  States 
Court  of  Appeals  for  the  Second  Circuit — Justices  La- 
combe,  Coxe  and  Noyes  sitting. 

Continuing,  the  learned  counsel  for  defendant-in-error 
says  under  Point  VI,  p.  16  of  said  brief  before  the  Circuit 
Court  of  Appeals: 


548 

POINT 

VI. 

-THE  LAW  UNDER  WHICH  THE  1899  PRO- 
CEEDINGS WERE  CONDUCTED  IS  NOT  UNCON- 
STITUTIONAL FOR  LA(^K  OF  ANY  REQUIRE- 
MENT THAT  NOTICE  BE  GIVEN  TO  THE  AL- 
LEGED LUNATIC." 

This  is  an  attempt  to  make  Coustitutional  a  Statute 
Avhicli  is  defective  aud  uiieonstitutioiial  if  cousidered  by 
itself.  The  attempt  is  made  to  bolster  up  this  Statute 
by  saying  that  general  principles  of  Law  require  notice. 

Our  position  is,  we  respectfully  submit,  that  the  ques- 
tion of  the  Constitutionality  of  the  Statute  must  be  deter- 
mined by  a  consideration  of  its  own  contents,  and  not 
by  reading  into  tlie  Statute  something  which  is  not  there. 
Supported  by  Earl,  J.,  in  Htiiart  v.  Palmer,  74  N.  Y., 
inpXL  "The  Constitutional  validity  of  Law  is  to  be  test- 
ed, Hol  by  wliat  lia.s  been  done  under  it,  but  by  what  may, 
by  its  authority,  be  done." 

As  the  Statute  under  consideration  is  one  which  re- 
lates to  a  particular  Proceeding,  and  defines  the  pro- 
cedure, we  must  assume  that  the  Legislature  of  the  State 
of  New  Y^ork,  in  enacting  the  Statute,  intended  to  require 
nothing  more  in  the  way  of  procedure  than  is  specified 
in  the  Statute,  and  intended  that  the  Lunacy  Proceedings 
provided  for  in  the  Statute  should  be  valid  and  binding 
if  conducted  in  strict  accordance  with  the  Statute;  and 
without  any  formalities  not  therein  specified. 

Considering  the  Statute  in  this  light,  axd  finding  that 
it  omits  an  11  provision  for  notice  to  the  alleged  lunatic, 
it  is  unconstitutional. 

In  the  case  of  People,  ed-  rel,  Maurice  J.  ^nllivan,  Re- 


549 


lator  V.  John  G.  Wcndcl  and  Mary  E.  A.  Wendcl,  Respon- 
dents, 33  Misc.,  49()  (Supreme  Court,  Kings,  Special 
Term,  December,  1900). 

Marean,  J.,  said : 

'^Slic  had  ii<»  notice  of  the  application,  either 
personal  or  by  substituted  service  on  some  person 
in  her  behalf,  and  there  Avas  no  hearino-  at  which 
she  Avas  either  present  or  represented  by  any  other 
person.  She  had  been  finally  adjudged  insane  and 
committed  to  perpetual  restraint,  without  notice 
or  hearing.  Slie  is  deprived  of  her  libertj^  there- 
fore, without  due  process  of  law  ( People  e.r  rel 
Ordicaij  v.  *S'f.  Saviour  s  Sanitarium,  34  App.  Div. 
363).  The  Insanitij  Laic,  so  far  as  it  permits  this 
is  in  violation  of  the  Constitution. 

"She  is  discharged."' 

In  the  case  of  TJir  J*eople  cr  rel,  Elizabeth  Ordway  v. 
St.  Saviour  Asylum,  34  App.  Div.  (N.  Y.),  363,  this  very 
question  was  squarely  presented  and  passed  upon. 

Elizabeth  Ordwav,  bv  agreement  with  her  familv,  and 
friends,  permitted  lierself  to  be  committed  to  St. 
Saviotir's  Asylum  for  one  year  for  the  purpose  of  treat- 
ment. Pursuant  to  that  agreement  Proceedings  were 
had  under  the  Statute  of  New  York  and  she  was  com- 
mitted to  that  institution  by  the  Court  for  tlie  period  of 
one  year,  unless  sooner  discliarged  by  the  Trustees  of  the 
Asylum.  There  was  no  notiee  of  the  Proceedings  served 
on  her.  She,  however,  was  fully  cognisant  of  the  Proceed- 
ings, which  were  had  ivith  her  consent  and  permission, 
and,  pursuant  to  the  Commitment  order,  she  was  received 
in  the  Asvlum.  Sometime  thereafter,  she  desired  her 
freedom,  and,  tlie  Trustees  refusing  to  discharge  her. 


550 

she  sued  out  a  writ  of  hahea.^  corpus.  The  return  of  the 
Trustees  showed  the  records  of  the  Proceedings  under 
which  she  was  committed  and  pLiced  in  their  custody. 
Counsel  for  Miss  Ordway  demurred  to  the  return,  and 
argued  that  the  Proceedings  tvere  void  as  being  in  con- 
travention of  the  ConstitiitioiiaJ  prorision  requiring  due 
process  of  Laiv,  and  the  Court  sustained  the  demurrer, 
holding  the  Proceedings  void. 

Among  other  things,  the  Court  said  : 

"Acts  of  the  Legislature  which  go  beyond  the 
allowance  of  temporary  confinement  or  restraint, 
until  trial  or  hearing  may  be  had.  and  the  ac- 
cused have  his  day  in  Court  in  some  way  custom- 
ary or  adequate  to  enable  him  to  present  his  ease, 
are  invalid  exercise  of  legislative  power.  *  *  * 
It  siirelij  cannot  he  said  tliat  the  procedure  au- 
thorized hji  tlie  acts  under  which  this  relator  was 
committed  and.  which  created,  ihe  wrong,  is  due 
process  of'  law  s'unphj  because  the  Legislature 
chose  to  authorize  that  procedure/' 

In  the  case  of  Sidney  H.  ^^tuart,  Jr.,  Appellant  v. 
George  W.  Palmer,  as  Collector,  etc.,  et  al,  Respondents, 
74  N.  Y.,  183  (May,  1878). 

Earle,  J.,  held: 

"I  am  of  the  opinion  that  the  Constitution  sanc- 
tions no  law  imposing  such  an  assessment,  with- 
out a  notice  to  and  a  hearing  or  an  opportunity 
of  a  hearing  by  the  owners  of  the  property  to  be 
assessed.  It  is  not  enough  that  the  owners  may 
bg  chance  have  notice  or  that  they  may  as  a  matter 
of  favor,  have  a  hearing.     The  law  must  require 


551 


jiolicc  to  (Jkiii,  and  give  tluMu  the  rifjlit  to  a  licar- 
iiifi  and   an   op/foiiiiiiiti/   to   be   heard.     *     *     * 

"The  Constitntional  validity  of  hiw  is  to  he 
tested,  not  h\  wliat  has  heeu  done  nnder  il,  hut 
hy  what  iiiai/,  hy  its  anthorfty  he  done.  The  Legis- 
hiture  may  preserihe  the  kind  of  notice  and  the 
mode  in  wliich  it  shall  he  given,  hul  it  caiiiiol  dis- 
pense with  all  iiotiee.     *     *     * 

''The  Legislature  can  no  more  arhitrarily  im- 
pose an  assessment  for  which  property  may  he 
taken  and  sold  than  it  eaii  render  a  juihjnient 
a(/aiiist  a  /ter.soii  icithout  a  lieariiKj.  It  is  a  rule 
founded  on  the  first  prineipJes  of  natural  justice 
older  than  written  Constitations,  that  a  citizen 
shall  not  he  deprived  of  his  life,  liherty  or  prop- 
erty icithout  an  opportuuiti/  to  he  heard  in  de- 
fense of  his  right,  and  the  Constitutional  provision 
that  no  person  shall  he  deprived  of  these  'without 
due  process  of  law'  has  its  foundation  in  this  rule. 
This  provisicm  is  the  most  imporiant  guaranti/  of 
personal  rights  to  he  found  in  the  Federal  or 
Htate  Constitutions.  It  is  a  limitation  upon 
arbitrarg  power,  and  is  a  guaranty  against  arhi- 
trarg  legislation.  No  citizen  .shall  arhitrarihj  he 
deprived  of  his  life,  lihertg  or  proper tg.  Tliis  the 
Legislature  cannot  do,  nor  autliorizc  to  he  done. 


In  the  case  of  Re  W.  H.  Lamhert  ((^»1.),  55  L.  R.  A  , 
85G. 

Hari-ison,  .7.,  said  : 

*'An  examination  of  the  foregoing  provisions 
of  the  Statute  shows  that  there  is  no  provision  for 
the  giving  to  the  alleged  insane  person  any  notice 
of  the  Proceedings  against  him,  and  that  under 


552 


its  provisions  the  tirst  intiiiiatioii  tliat  he  may 
liave  thereof  may  be  when  the  Sherilf  takes  him 
into  his  custody  under  the  Order  of  Commit- 
ment. The  person  makinj--  the  application  for 
the  Commitment  is  not  required  to  give  any 
notice  thereof,  nor  is  there  any  requirement  that 
he  shall  be  informed  of  the  object  for  which  the 
physicians  are  examining  him."     *     *     * 

"The  Statute  thus  clearly  provides  that  the 
Proceedings  before  the  Judge  in  a  case  like  the 
present  may  l>e  entirely  ex  jxirfe,  and  that  he 
may  be  satisfied  that  the  alleged  insane  person  is 
insane  by  merely  examrning  the  certifieatc  and 
petition.  He  may  issue  the  Order  of  Commitment 
upon  the  opinion  of  the  two  Examiners,  without 
any  examination  by  himself  of  the  person  sought 
to  be  committed,  fjr  of  the  Examiners  who  have 
made  the  certificate,  and  without  any  knoirledge 
of  the  facts  or  testimony  upon  which  they  have 
made  their  certificates.  In  thus  acting  upon  these 
documents,  he  takes  as  the  basis  of  his  action  the 
opinion  of  the  examiners  ascertained  as  before 
shown,  that  the  individual  is  insane.  The  opin- 
ions of  practitioners  of  medicine,  however,  upon 
the  (luestion  of  insanity,  are  not  always  uniform 
or  infallihle,  especially  if  such  opinion  is  formed 
ex  parte,  or  without  an  opportunity  for  a  full 
investiyation  of  the  eliarye.  The  uiere  certificate 
of  an  opinion  tlius  obtaincMl  ouyht  not  to  be  a 
sufficient  warrant  for  an  order  for  the  Commit- 
ment of  a  person  in  an  Insane  Asylum.  There 
should  at  least  be  the  semhlance  of  a  judicial  in- 
vestigation, of  Avhich  a  puhlic  record,  can  he  pre- 
served, he  fore  a  ]ierson  can  be  deprived  of  his 
liberty.     *     *     * 


553 


''What  constitntcs  due  jn-ocess  of  law  may  not 
be  readily  foriinilated  in  a  detinition  of  univer- 
sal application,  l»nt  it  incdudes  in  all  cases  the 
ri(/lit  of  the  iM'i'son  to  sncli  notice  of  tlu»  (daini  as 
is  appropriate  to  the  proceedings  and  adapted 
to  the  nature  of  the  cause,  and  the  i-i<ihf  to  he 
heard  before  an  order  for  jud!i,ment  in  the  Pro- 
ceedinfi's  edit  he  made  by  which  he  will  be  de- 
jtrirrd  of  liis  life,  liherfi/  or  property.  The  Coii- 
stitutioiKil  (juaranty  that  he  shall  not  be  de- 
prived of  his  liberty  without  due  process  of  laic, 
is  violated  wlienerer  such  judgment  is  had  with- 
out  f/iriny  liiin  <(ii  opportniiity  io  he  heard  in 
defense  of  the  eJiarye,  and  upon  such  hearing  to 
offer  evidence  in  support  of  his  defense.  If  his 
right  to  a  hearing  depends  upon  the  irill  or  ca- 
price of  others  pv  upon  the  discretion  or  the  n'ill 
of  the  Judge  who  is  to  make  a  decision  upon  the 
issue,  he  is  not  protecied  in  his  Constitutional 
riyhts.      {('nderu-ood  v.  People,  32  :Mich.,  1,  20 

Am.  Kep.,  ()33).     *     *     * 

..*     *     *     The  (juestion  to  be  determined  is  not 

whether  the  action  of  the  Judge  in  investigating 
the  insanity  of  the  petitioner  was  conducted  un- 
der the  forms  of  law,  and  Avitli  proper  regard  for 
his  rights,  but  n-Jiether  the  J  a  dye  had  the  riyht 
to  enter  upon  the  inrestiyation,  or  take  any  ac- 
tion ichaterer  in  reference  to  his  sanilit.  *  *  * 
"Under  the  foregoing  consideration,  it  ninst  he 
held  that  the  Insanity  Law  of  181)(),  to  the  ex- 
tent that  it  authorizes  the  conlineuient  of  a  per- 
son to  an  insane  asylum  n-ithont  yiriny  him  no- 
tice, and  an  opportnnity  to  he  heard  upon  the 
charge  against  him,  is  uneonstitntional,  and  that 
the  Proceedings  by  which  the  petitioner  is  held 
by  the  respondent  are  invalid. 


554 


"It  is  ordered  that  the  petitioner  be  released 
from  the  asylum." 

It  thus  appears  from  the  foregoiug  authorities  that,  in 
order   that   a   State   Statute   prescribing   procedure   in 
lunacy  cases  may  be  Constitutional,  under  the  due  pro- 
cess of  law  provisions  of  the  State  and  Federal  Constitu- 
tions, it  is  absolutely  necessary  that  the  Statute  shall 
have  embodied  within  it  a  positive  requirement  that  no- 
lice  of  the  Proceedings  be  given  to  the  alleged  lunatic, 
and  that  he  be  given  an  opportunity  to  be  heard.     It  is 
not  enough  to  save  a  Statute  from  condemnation  on  the 
ground  of  unconstitutionality,  to  say  that  the  general 
unwritten  law  of  procedure  in  the  Courts  of  a  State  re- 
(juires  that  notice  be  given,  or  to  say  that  the  Judge,  in 
the  order  appointing  the  Commission,  and  authorizing  the 
empaneling  of  a  Jury  to  try  the  issue  before  the  Commis- 
sion, has,  in  that  order  required  that  notice  be  given. 
Supported  by  Earl,  J.,  supra.    It  is  uot  a  question  of  the 
Constitutionality  of  the  -Judge's  order  which  is  under 
consideration  here,  hut  the  question  of  the  Constitution- 
ality of  the  statute.     Supported  by  Harrison,  J.,  in  Re 
W.  II.  Lambert  (Cal.)  55  L.  R.  A.,  supra:    "If  his  right 
to  a  hearing  depends  upon  the  will  or  caprice  of  others 
or  upon  the  discretion  or  the  irill  of  the  Judge  who  is  to 
jiiake  a  decision  upon  the  issue,  he  is  not  protected  in  his 
Constitutional  rights/'     That  Statute  contains  no  pro- 
rision  requiring  notice,  and  can  only  he  read  as  having 
heen  intended  bv  the  Legislature  of  the  State  of  New 
York  as  authorizing  the  institution  and  proseculion  tc 
pnal  judgment  of  the  Lunacy  Proceedings  which  would 
deprive  the  alleged  lunatic  of  his  liberty,  without  notice. 
In  interpreting  an  ambiguous  Statute  the  rule  is — we 
respectfully  submit — to  compare  same  with  some  Statute, 
which  is  less  ambiguous  on  or  near  the  same  subject. 


555 


Applying  the  above  rule  in  the  present  instauce  we  have 
a  clear  cut  declaration  upon  the  part  of  the  Legislature 
of  New  York  that  it  does  not  approve  of  notice  in  Lunacy 
Proceedings,  does  not  want  the  alleged  lunatic  to  have 
notice  of  the  Proceedings  against  him,  and  in  its  laws 
of  1890  in  re  Lunac}^  Procedure  has  emphatically  stated 
— tho'  with  great  finesse — as  tho'  it  knew  it  were  doing 
an  unconstitutional  thing  and  wished  to  so  cloak,  hide 
and  gloss  over  its  said  act  that  no  one  but  a  lawver  and 
a  penetrating  one  at  that,  could  pierce  the  said  cloak — 
said  Legislature  has  emphatically  stated  that  it  disap- 
proved of  notice  to  the  alleged  lunatic  in  the  following 
form  signed  by  the  learned  Judge  Henry  A.  Gildersleeve 
in  the  Commitment  Papers  (Transcript  of  Record,  p. 
110,  fol.  215),  ''I  do  hereby  certify  that  I  have  dispensed 
with  personal  service  or  that  I  have  directed  substituted 
service  as  pro\:ided  h}/  law." 

One  would  naturally  presume  from  reading  the  above 
that  if  personal  service  was  dispensed  with  substituted 
service  must  be  directed  '"as  ijrorided  hy  law/'  But  noth- 
ing of  the  sort  is  the  case.  The  unfortunate  plaintift'-in- 
error  was  duly  deprived  of  personal  service  and — not  the 
false  and  misleading  ^'^or'  of  this  crafty  and  sinister 
Statute — '^'as  provided  hy  laio." 

There  can,  therefore,  be  no  possible  shadow  of  a  doubt 
about  the  views  and  attitude  of  the  Legislature  of  the 
State  of  New  York — on  the  strength  of  the  aforesaid  ex- 
hibition of  Legislative  craft  and  guile  in  the  interests  of 
the  Amalgamated  Private  Mad-houses  honeycombing  the 
"Empire  State"  of  the  largest  and  most  ancient  and  most 
pretentious  of  which  the  head  of  the  firm  of  Evarts, 
rhoate  and  Sherman  is  or  until  recentlv  at  all  events  was 
a  distinguished  pillar  and  support  as  a  member  of  the 
''Board  of  Governors.'' 

Lastly,  all  possible  doul)t  upon  this  topic  is  forever 


550 


swept  away  by  the  forceful  and  el()(|iieiit  words  of  the 
learned  counsel  for  defendant-in-error,  p.  IT,  Point  VII 
of  his  said  brief.  To-wit.  ''The  Proeeedino  (]S97  Com- 
initnient)  was  in  full  and  exact  accordance  with  the  In- 
sanity Law  of  New  York  which  permits  a  coniniitnient 
without  notice."  A\'e  respectfully  submit  that  we  lay 
especial  stress  upon  the  fact  that  the  Commitment  Pro- 
ceedings of  plaintiff-in-error  were  p)ial  Proceedings — 
contained  a  piidJ  I ndictincnt  against  plaintiff-in-error's 
sanity.  The  proof  of  the  above  lying  in  the  fact  that 
plaintitf-in-error  lay  in  "Bloomingdale"  f<u'  over  tiro 
calendar  vears  before  Proceedings  before  a  Sheriff's  Jurv 
and  Commission-iu-Lunacy  were  instituted.  And  it 
should  be  borne  in  mind,  we  respectfully  submit,  that  the 
only  earthly  reason  said  Proceedings  Avere  then  at  said 
time  over  two  calendar  years  after  Commitment  Pro- 
ceedings were  had  was  the  convenience  and  interest  of 
the  Chanler  familv  and  their  friends  and  allies.  This 
is  exhaustively  gone  into  in  this  Brief,  supra,  and  in  sup- 
port of  our  said  contention  said  Winthrop  Astor  Chanler 
states  under  cross-examination  in  his  Deposition  tJr  hruc 
esse  (p.  — ,  fol.  — ),  .supra,  that  said  1899  Sheriff's  Jury 
Proceedings  were  brought  as  a  convenience  to  said  Stan- 
ford White  who  had  apparently  grov\'n  tired  of  his  self- 
sought  post  of  Power  of  Attorney  for  plaintit¥-in-error — 
now  that  his  object  was  accomplished  and  plaintiff-in- 
error  immured  apparently  for  life  in  the  cells  of  ''Bloom- 
ingdale" — and  asked  to  be  awarded  for  his  honorable  ser- 
vices by  being  relieved.  Whereupon  said  P.  H.  Butler, 
said  White's  brother-in-law,  was  appointed  at  the  said 
1899  Proceedings. 

The  Legislature  of  New  York  having  defied  the  Com- 
mon Law  Avhich  calls  in  stentorian  tones  for  notice  and 
opportunity  to  be  heard — as  Avell  as  ain/  other  known  and 
recognized  law  or  practice — in  its  al)ove  said  sinister  and 


557 


\M(k('<l  Statute  will  uot  be  construed — bv  a  Court  of 
Justice  as  blowing  hot  aud  cold — as  setting  all  law  an(l 
(ill  legal  practice  of  whatever  shade  or  colour  at  defiaii<e 
in  its  Statute  relative  to  Connuitment  Proceedings  afore- 
said, and  then  rclijiiifj  upon  any  law  or  any  practice 
aforesaid  to  cure  the  defects  in  its  Statute  relative  to 
Proceedings  before  a  ('oninnssion-in- Lunacy  and 
Sheriff's  Jury.  It  lias  made  its  bed — has  said  Legisla- 
ture, we  respectfully  submit,  and  therefore  niiist  lie  in  it. 

Such  Statutes  have  been  condemned  in  the  cases  be- 
fore (juoted,  and  those  decisions  are  clearly  right. 

Such  a  Statute  was  condemned,  and  in  strong  terms, 
by  that  great  New  York  Judge — the  late  Chief  Judge 
Rapallo— of  the  Ncnv  York  Court  of  Appeals  in  Fcrf/nsoii 
v.  C ma-ford,  70  N.  Y.,  infra— \w  which  the  learned  Chief 
Judge  said:  "He  is  sought  to  be  held  lumnd  by  a  judg- 
ment when  he  was  never  personally  summoned  or  had 
notice  of  the  Proceedings,  irhich  re.siilt  Jias  hccii  frc- 
qaeutly  declared  to  he  coiiirdrj/  io  ihe  prxt  priiici/tles; 
of  just  ice.'' 

Section  2323-a  of  the  Code  of  Civil  Procedure  is  the 
only  Section  in  the  entire  title  dealing  with  this  subi 
ject  wdiich  requires  notice  to  the  alleged  lunatic,  and 
that  Section  is  expressly  limited  to  cases 

"where  an  incompetent  person  has  been  committed 
to  a  State  Institution  in  any  manner  provided  by 
law  and  is  an  inmate  thereof." 

That  Section  was  added  to  the  title  in  (juestion  by  the 
Act  of  the  Legislature  of  1895,  and  the  limitation  was. 
emphasized  by  the  title  of  the  Act  of  the  Legislature  of 
1904,  amending  that  Section,  which  title  is— 

"An  Act  to  amend  section  twentv-three  hundred  and 


558 


twenty-three-a  of  the  Code  of  Civil  Procedure  re- 
lating to  the  appointment  of  Committees  for  in- 
competent persons  who  are  inmates  of  State  In- 
stitutions." Laws  of  New  York,  12Tth  Session, 
1904,  Vol.  2,  p.  1278. 

The  1899  Proceedings,  in  which  Prescott  Hall  Butler 
was  appointed,  was  not  instituted  and  conducted  under 
Section  2323-a,  and  could  not  have  been  so  instituted 
and  conducted  because  it  was  not  a  case 

"where  an  incompetent  person  has  been  commit- 
ted to  a  State  Institution  in  any  manner  pro- 
vided by  law  and  is  an  inmate  thereof." 

It  was  instituted  and  conducted  under  the  provisions 
of  Section  2325,  in  which  there  is  no  mention  of  notice 
to  the  alleged  incompetent. 

When  the  Legislature  in  1895  amended  the  title  of 
the  Code  of  Civil  Procedure  covering  the  appointment 
of  committees  for  incompetent  persons,  it  added  Sec- 
tion 2323-a  in  its  entirety,  and  provided  that  notice 
must  be  given  to  an  incompetent  person  who  was  an  in- 
mate of  a  State  Institution  of  a  petition  for  the  appoint- 
ment of  a  Committee.  Section  2325  was  already  in 
that  title  and  did  not  provide  for  such  notice.  We  re- 
spectfully insist,  therefore,  that  the  Legislature  clearly 
intended  to  authorize  the  institution  and  prosecution  of 
petitions  for  Committees  for  alleged  lunatics  ivithoiit 
notice  in  all  cases  not  covered  hy  the  netv  Section,  2323-^;, 
then  added  to  the  law.  This  being  ro,  there  is  no 
foundation  for  the  contention  made  in  behalf  of  the  de- 
fendant-in-error  that  the  deficiency  of  the  Statute  in 
the  matter  of  notice  may  be  supplied  by  the  Chan- 
cery practice  existing   before  the   Code   was   enacted. 


559 


Supported  by  wliat  we  have  set  forth  in  sup- 
port of  our  contention,  supra,  p.  5 :  "That  Statute  con- 
tains no  ])royision  requiring  notice."  In  closing-  our 
discussion  of  this  Point  YI  of  the  learned  counsel  for 
defendant-in-error,  we  might  observe  that  the  highest 
Court  in  the  State  of  New  York  has  passed  upon  the 
question  of  opportunity  to  appear  and  be  heard  in  any 
legal  Proceedings — which  of  course  includes  ipso  facto 
notice  of  said  Proceedings.  For  the  learned  Counsel 
for  defendant-in-error  so  assures  us  in  Point  Y  of  his 
said  brief.  Namely  that  the  New  York  Court  of  Ap- 
peals has  decided  in  Hap  pi/  versus  Mosher,  48  New 
York,  313,  that  opportunity  to  be  heard  must  not  be 
"impracticable." 

Said  learned  counsel  says,  p.  14  of  his  brief:  "The 
Court  of  Appeals  of  New  York  has  held  in  Happy  v. 
Mosher,  48  N.  Y.,  313,  that  a  sufficient  opportunity  to  be 
heard  was  afforded  b^^  Proceedings  under  a  Statute 
which  made  the  giving  of  an  expensive  bond  a  prerequi- 
site to  the  right  to  defend.  In  deciding  this  case  the 
Court  said  that  opportunity  to  defend  is  not  denied 
thcmgh  made  difficult  so  long  as  it  is  not  impracticable/' 

The  Legislature  must  he  held,  we  respectfully  submit, 
to  hare  intended  to  supplant  the  Chancery  practice  re- 
ferred to,  and  to  have  intended  that  the  title  containing 
Sections  2323-a  and  2325  should  be  complete  and  that 
no  formalities  should  be  required  in  Proceedings  for 
the  appointment  of  Committees  not  contained  therein. 
When  so  considered,  the  Statute  is  plainly  unconstitu- 
tional, and  the  Proceedings  had  thereunder  are  void. 

In  the  Court  below  it  was  said  by  the  learned  counsel 
for  defendant-in-error  that 

"The  law  under  which   the  1899   Proceedings 
were  conducted  is  not  unconstitutional  for  lack 


560 


of  aiiY  requii-ement  that  notice  be  given  to  the 
alleged  liiuatic." 

(Counsel  further  stated  that 

"The  contention  at  the  trial  was  that,  although 
the  plaiutift-in-error  had  notice  of  every  stage  of 
the  1899  Proceedings,  such  notice  was  insufficient 
as  not  required  by  Statute.  The  notice  was,  how- 
ever, required  by  law,  and  that  is  sufficient," 

an<l  cited  Matter  of  Blcwitt,  131  N.  Y.,  541. 
He  further  stated — 

A. 

"The  requirement  was  (not)  included  in  the 
particular  Code  Section  (Sec.  2323)  dealing  with 
the  subject,  but  the  power  of  the  Court  over  luna- 
tics is  mainlv  inhei-ent  and  not  derived  from 
the  Code.  The  Code  regulates  it  in  certain  par- 
ticulars. In  all  i^articulars  not  so  regulated, 
Proceedings  in  Lunacy  are  governed  by  the  Chan- 
cery practice  existing  before  the  Code  was  en- 
acted. That  practice  required  notice  of  the  ex- 
ecution of  the  Commission," 

citing  GridJei/  v.  ('oJ]c</r  of  aS^.  Francis  Xavier,  137  N. 
Y.,  327,  and  Matter  of  Andrei£S,  192  N.  Y.,  514. 
Counsel  further  stated — 

"Moreover,  the  Code  Section  under  which  the 
Proceeding  is  taken,  provides  that  the  Commis- 
sion 'may  contain  such  other  directi/)ns  with  re- 
spect to  the  matter  of  executing  the  Commission 
as  the  Court  directs  to  be  inserted  therein.'     The 


5(1 1 


order  for  the  Coininission  (lirectcd  that  previ- 
ous notice  of  time  and  place  of  execution  of  the 
Coniniission  be  given  to  the  phiintiff-in-error.  It 
folh)ws  that  tlie  notice  served  upon  the  phnintitf- 
in-error  was  not  a  mere  voluntary  notification, 
but  was  a  Proceeding  required  by  law." 

Sections  2323,  2325  and  2328  under  which  the  Pro- 
ceeding of  181)9  was  instituted  and  prosecuted,  contain 
no  provision  that  notice  be  given  to  the  alleged  lunatic. 
The  only  Section  requiring  such  notice  is  Section  2323-a 
which  is  limited  to  cases  "where  an  incompetent  person 
has  been  committed  to  a  State  Institution  in  any  man- 
ner provided  by  laAV  and  is  an  inmate  thereof." 

The  ''Bloomingdale"  Asylum,  which  is  a  department 
of  the  New  York  Hospital,  owned  and  nmintained  by 
the  corporation.  The  Society  of  the  New  York  Hospital, 
is  not  a  State  Institution  within  the  meaning  of  Sec- 
tion 2323-a. 

TJir  ('(i.sc.s  cited  h//  tlcfeiitJaiil-iii-crrof  do  not  sustain  the 
]n-o positions  asserted   />//  Jiint    upon    their  authoritji. 

In  Matter  of  lihuritt,  131  N.  Y.,  541,  the  (%)urt,  after 
discussing  at  some  length  the  necessity  for  notice — 
pointing  cmt  that  Section  2325  of  the  Code  does  not 
touch  the  (juestion  of  the  right  of  the  alleged  lunatic 
to  have  notice — discussed  the  distinction  between  cases 
in  which  notice  to  tlie  lunatic  should  be  given,  and  cases 
in  which  it  need  not  be  given;  and,  aftei-  e.rpressiiu/  Ihe 
opinion  that  tlie  Proceeding  then  under  consideration 
hy  the  Court  was  inraJld,  for  wdnt  of  notice  to  tlie 
alleged  lunatic,  tlu^  Court  aJxindoned  the  </nestion  of 
notice  entire] i/  and  upon  otJter  (/rounds  ajfirnied  the 
order  appealed  from,  tJiongJi  the  appeal  was  grounded 
upon  lack  of  notice,  therefore  Matter  of  liJen-itt  is  not 
authority  for  the  proposition  that  notice  to  the  alleged 
lunatic  is  absolutely  required  by  law. 

(30) 


562 


Gridk'n  v.  CoUeye  of  >>i.  Fraiici.s  Xader,  127  N.  Y., 
327,  is  not  au  autlioritj  for  the  proposition  asserted  1»y 
counsel  for  the  defeudant-in-error  that 

"Th(?  power  of  the  Court  over  lunatics  is  main- 
ly iidierent  and  not  derived  from  the  Code.  The 
Code  regulates  it  in  certain  particulars.  In  all 
particulars  not  so  regulated,  Proceedings  in 
Lunacy  are  governed  by  the  Chancery  practice 
existing  before  the  Code  was  enacted.  That  prac- 
tice required  notice  of  the  execution  of  the  Com- 
mission." 

In  the  Court's  opinion  there  is  no  reference  to  such 
matter. 

Matter  of  Andrcus,  192  N.  Y.,  514,  involved  the  power 
of  the  Supreme  C(mrt  of  the  State  of  New  York  to  re- 
move a  Committee  of  the  estate  of  a  person  adjudged 
insane  and  to  appoint  a  new  Committee,  without  notice; 
and  it  was  sought  to  sustain  the  authority  of  the  Court 
in  this  regard  upon  the  broad  ground  that,  in  the  exer- 
cise of  its  jurisdiction  over  lunatics,  idiots,  habitual 
drunkards,  and  persons  of  unsound  mind  generally, 
authority  is  in  the  Court,  of  its  own  motion,  in  the 
absence  of  Statute,  to  remove  the  Committee  of  the 
estate  of  a  person  who  has  been  committed.  The  Conrt, 
hon-ercr,  deternvined  the  fjuestion  hjf  reference  to  the 
several  Actions  of  tJie  Code  of  Ciril  Procednre  relat- 
in<i  to  Conrmittees  of  estates  of  lunatics,  and  not  upon 
the  (/round  nsserted,  of  general  and  inherent  jurisdic- 
tion. 

Tn  considering  counsel's  statement  that 

''Moreover,  the  Code  Section  under  which  the 
Proceeding  is  taken,  provides  that  the  Commis- 


563 


sioii  may  contain  such  otlici-  directions  with  re- 
spect to  the  matter  of  executini>-  the  Commission 
as  the  Court  directs  to  be  inserted  therein." 

the  whole  Section  shonhl   he  considered.     It  is  as  fol- 
lows : 

"Section  2328.  CONTENTS  OF  COMMIS- 
SION.— The  Commission  mnst  direct  the  Com- 
missioners to  cause  the  Sheriff  of  the  county 
specified  therein  to  procure  a  Jury ;  and  that  they 
inquire  by  the  Jury  into  the  matters  set  forth 
in  the  Petition;  and  also  into  the  value  of  the 
real  and  personal  property  of  the  person  alleged 
to  be  incompetent,  and  the  amount  of  his  income. 
It  may  contain  such  other  directions  with  re- 
spect to  the  subjects  of  the  iuijuiry  or  the  man- 
ner of  executing  the  Commission,  as  the  Court 
directs  to  be  inserted  therein.'' 

This  section  Jtas  no  reference  irJiaterer  to  the  matter 
of  process  or  notice.  That  matter  is  covered  by  the  pro- 
visions of  Section  2325.  The  function  of  the  ])resent 
Section  (2328)  is  to  give  directions  to  the  Commis- 
sioners as  to  what  they  shall  do  under  the  Commission 
in  the  matter  of  prociiriiif/  a  Jury  and  inquiring  into 
the  matters  set  forth  in  the  Petition,  and  other  related 
matters. 

Furthermore.  Our  aforesaid  contention  is  absolutely 
confirmed  by  the  ruling  of  the  learned  kludge  Wood- 
ward in  Matter  of  O.^honi,  74  A.  D.,  cited  by  the  learned 
counsel  for  defendant-in-error  in  his  said  brief.  The 
learned  Judge  said,  (Under  Point  VIII,  in  said  learned 
counsel's  brief)  :  "This  conteni])lates  a  continuance 
of  the  original  Proceeding  in  whicli  (///  of  the  parties 


564 


shall  be  permitted  to  be  lieard,  and  not  an  independent 
Proceeding  where  all  of  the  parties  may  be  slmt  out  from 
participation." 

Continuing,  the  learned  counsel  for  defendant-in-error 
says,  under  Point  VIIT,  p.  17,  of  said  brief: 

POINT 

VIIL 

"NO  NOTICE  OF  THE  APPLICATION  FOR  THE 
DEFENDANT-IN-EPvROR'S  APPOINTMENT  IN 
1901  IN  PLACE  OF  PRESCOTT  HALL  BUTLER, 
DECEASED,  WAS  GIVEN,  BUT  NONE  WAS  RE- 
QUIRED." 

"No  notice  of  the  application  for  the  defen- 
dant-in-error-s  appointment  in  11)01  in  place  of 
Prescott  Hall  Butler,  deceased,  was  given,  but 
none  was  required." 

The  foregoing  proposition  was  advanced  by  the 
learned  counsel  for  the  defendant-in-error  in  the  Court 
below.     In  support  of  this  he  states — 

"There  is  no  Statutory  requirement  of  notice 
in  such  a  Proceeding,  which  is,  of  course,  a  mere 
substitution  by  the  Court  of  one  person  for  an- 
other as  its  officer.  This  it  mav  alwavs  do  at  its 
discretion," 

citing  Matter  of  Griffin,  5  Al)b.  Prac,  (N.  S.)  96;  Matter 
of  Oshoni,  74  A.  D.,  113. 


565 


111  Matter  of  (}  riff  in,  the  question  of  notice  was  neither 
involved  nor  mentioned,  in  the  one-page  report  of  the 
case.  It  appears  that  the  Petition  was  filed  and  a  hear- 
ing- had,  but  there  is  not  a  word  on  the  subject  of  notice, 
and  ichy  counsel  cited  this  case,  when  notice  is  the  suh- 
ject  of  discussion,  is  more  than  iv.e  can  comprehend. 

In  Matter  of  Oshorn,  74  A.  D;,  113. 

Woodward,  J.,  said: 

"It  is  true,  by  the  provisions  of  Section  2339 
of  the  Code  of  Civil  Procedure,  a  Committee  over 
the  person  of  the  property  is  subject  to  the  direc- 
tion and  control  of  the  Court  by  which  he  was 
appointed  witli  respect  to  the  execution  of  his 
duties;  and  that  he  may  be  suspended,  removed, 
or  allowed  to  resign,  in  the  discretion  of  the 
Court,  but  this  is  a  judicial  discretion  to  be  exer- 
cised in  conformity  with  the  rules  and  practice  of 
the  Courts,  and  not  capriciousli}  and  loithout  a 
patient  hearing  of  all  matters  which  legitimately 
bear  upon  the  question.  *  *  *  The  Code  pro- 
vides that  in  all  subsequent  Proceedings  after  the 
determination  of  the  incompetency  of  the  per- 
son, the  lunatic,  idiot,  habitual  drunkard,  shall  be 
designated  'an  incompetent  person.'  This  con- 
.templates  a  continuance  of  the  original  Proceed- 
ing in  which  all  of  the  parties  shall  he  pennitted 
to  he  heard,  and  not  an  independent  Proceeding 
where  all  of  the  parties  may  he  shut  out  from  par- 
ticipation/' 

This  is  not  a  ruling  that  no  notice  of  an  application  to 
suhstitute  one  Committee  for  another  need  he  given,  but 
the  precise  and  exact  opposite  thereof.  To- wit:  "This 
contemplates  a  continuance  of  the  original  Proceeding, 


5G6 

ill  wliicli  (til  of  the  parties  shall  be  permitted  to  be  heard, 
and  not  an  independent  Proceeding  where  all  the  parties 
may  be  shut  out  from  participation." 

Counsel  for  defendant-in-error  further  stated — 

"The  change  does  not  aft'ect  the  substantial 
rights  of  the  incompetent.  If  anyone  is  entitled 
to  notice  of  such  a  change,  it  is  not  the  incom- 
petent who,  as  an  adjudged  incompetent,  must  be 
deemed  incapable  of  receiving  or  acting  upon  such 
notice.  In  any  event,  failure  to  give  notice  of  such 
change  in  no  manner  impairs  or  vitiates  the  juris- 
diction of  the  Court," 

and  cited  Matter  of  Andrru:^.  192  N.  Y.,  514. 

In  Matter  of  Audreu's,  Willard  Bradley,  J.,  said: 

''The  parties  entitled  to  notice  of  the  Proceed- 
ing for  the  appointment  of  a  Committee  should 

hare  notice  of  the  Proceeding  for  his  removal. 

*     *     *?? 

Notice  to  the  plaiutiff-in-crror  of  the  Proceeding  for 
the  appointment  of  Prescott  Hall  Butler  was,  we  respect- 
fully submit,  absolutely  necessary.  Counsel  of  record  in 
the  original  Proceeding,  in  which  Butler  was  appointed, 
recognized  this  and  attempted  to  give  a  legal  notice,  aJ- 
though,  as  we  have  heretofore  pointed  out,  the  notice  urns 
illegal  because  the  Statute  under  ichich  the  Proceeding 
was  conducted  did  not  provide  for  such  a  notice.  There- 
fore, the  necessity  of  notice  of  the  original  Proceeding 
being  conceded,  notice  of  tlie  Petition  to  suhstitute  de- 
fendant-in-error in  the  place  of  Prescott  Hall  Butler 
was  necessary  under  the  rule  announced  in  Matter  of  An- 
drews, above  quoted. 


567 
VI<:TTA    SLMON,   Plaintiff, 


JOHN  N.  (IJAFT. 

{hi  r.rlcuso.  Appendix,  ]).  32!).) 

182  F.  vS.  Supreme  ('ourt  Keports,  427.  Arj-ued  March 
12tli,  1901.     Decided  May  2nd,  1001. 

Statement  by  Justice  White.  Writ  of  error  to  review 
judgment  of  Supreme  Court  of  Alabama  in  favor  of 
John  N.  Craft,  which  was  entered  by  a  lower  State  Tri- 
bunal ui)on  a  verdict  rendered  on  the  second  trial  of  an 
action  in  ejectment  wherein  Yetta  Simon  was  IMaintilf. 
Facts  are  as  follows  :  In  1889  Plaintiff,  a  widow,  resided 
in  M(>bile,  Ala.  She  lived  in  and  owned  a  lumse  there, 
which  is  the  real  estate  affected  by  the  action  of  eject- 
ment herein.  January  30tli,  1889,  K.  (J.  liichard,  as  a 
friend,  tiled  in  tlie  Probate  Court  of  Mobile  County,  a 
Petition  for  an  in(|uisition  of  Lunacy  as  to  Mrs.  Sinum, 
stating-  that  she  was  49,  a  resident  of  ^fobile,  of  unsound 
mind  and  incapable  of  governing  herself  or  of  conduct- 
ing and  managing  her  affairs.  Cpcm  the  Petition  an 
oi'der  was  entered  for  a  hearing  on  February  6,  1889,  an<l 
"that  a  Jury  be  drawn,  as  the  I^aw  directs,  for  the  trial 
of  this  issue,  and  a  writ  was  issued  to  the  sheriff,  re- 
(juiring  him  to  take  the  said  Yetta  Simon,  so  that  he 
have  her  in  Court  to  be  presented  at  said  trial,  if  con- 
sistent with  the  health  and  safety  of  said  Simon."  The 
writ  was  duly  returned,  with  the  following  endorse- 
ment: ''/IcreiiCiJ  J((iiii(n-ij  31^'^  1889,  (iiul  on  fhr  sainr 
(Idjl  I  (wevuted  the  irlthni  irrii  of  (irreHi  hii  ftikiiif/  into 
nil/  (■nf<f()(Ji/  flic  iritliii)  nanicil  Ycfld  f^inioii  and  iKiniJincf 
Jirr  a  coinj  of  sa'uJ  irrif,  and  as  it  is  inc(msistent  with 
the  liealth  or  safetv  of  said   Yetta  Simon   to  have  her 


568 

yrc'seut  at  the  place  of  trial,  and  on  the  advice  of  Dr.  11. 
1».  Hei'stfield,  a  pliysician  wliose  certificate  is  liereto  at- 
tached, she  is  not  brouoht  before  the  Honorable  Conrt. 

HOLCOMB,  Sheriff." 

Certificate  of  Dr.  Herstfield. 

To  flic  ^licriff'  of  Mobile  (Umiifi/: 

"I,  H.  P.  Herstfield,  a  regnlar  physician,  practicing 
in  Mobile  C\)untv,  Ahi.,  liereby  certify  tiiat  I  am  ac- 
(juainted  with  :\lrs.  Yetta  Simon,  and  have  examined  her 
condition  on  yesterday  and  find  that  she  is  a  person  of 
nnsonnd  mind,  and  it  would  not  be  consistent  with  her 
health  or  safety  to  have  her  present  in  court  in  any 
matter  now  pending." 

One  Vaughan  was  appointed  Guardian  ail  HI  em  "in 
the  matter  of  the  Petition  to  incpiire  into  her  lunacy, 
and  he  filed  an  answer  to  the  Petition  of  general  denial 
and  demanding  strict  proof  according  to  law.  Thereupon 
a  hearing  was  had  before  a  Jury,  who  returned  a  verdict 
that  Mrs.  Simon  was  of  unsound  mind  and  a  decree  to 
that  effect  was  duly  entered.  Subsequently  Kichard  was 
appointed  guardian  of  the  estate  of  Mrs.  Simon,  and  by 
order  of  the  Court  a  sale  of  real  estate  in  question  was 
ordered  to  pay  debts  of  Mrs.  Simon  and  for  the  support 
of  her  family.  Sale  made  INIay,  1889,  purchaser  Henry 
J.  Simon,  who  sold  to  John  N.  Craft,  the  defendant  here- 
in. In  Septend)er,  1895,  the  within  action  in  ejectment 
was  instituted.  Upon  second  trial  Defendant  Craft  in- 
troduced Record  of  Proceedings  of  Probate  Court  upon 
the  in(iuisition  of  lunacy,  and  the  Record  of  Proceedings 
resulting  in  sale.  Objections  to  introduction  of  such 
Records  was  made  upon  specified  grounds  ( set  forth  here- 
after).    Objections  were  overruled  and  the  Record  al- 


5G9 


lowed  to  be  read  in  evidence,  to  wliicli  iictioii  of  the 
Court  exception  was  diilv  taken.  The  approval  of  ihe 
Supreme  Coui't  of  Alabama  of  this  ruling  i«  what  is  here 
(■(uiiplained  of. 

1st.  In  that  there  was  no  process  issued  notifying 
Yetta  Simon  to  be  present  at  the  trial  of  the  incpiest 
of  lunacy  that  was  held. 

2d.  No  provision  made  in  or  by  said  Proceedings 
whereby  said  Simon  might  be  present  at  the  inquest. 

3d.  In  that  writ  of  arrest  for  body  of  Vetta  Simon 
was  conditional  in  form  and  conferred  upon  the  sheriff 
the  power  to  determine  wh'4her  it  should  be  executed  or 
not. 

4tli.  In  that  said  Avrit  left  it  to  judgment  of  sheriff 
(page  3)  whether  said  Simon  should  be  allowed  to  ap- 
pear at  inquest. 

5tli.  In  that  said  Avrit  authorized  the  sheriff  to  re- 
strain Yetta  Simon  of  lier  liberty  and  deprive  her  of  the 
opportunity  to  be  heard  at  the  inijuest. 

6th.  In  that  the  sheriff's  return  shows  that  under  the 
writ  of  arrest  he  restrained  Yetta  Simon  of  her  liberty 
and  did  not  permit  her  to  be  present  at  the  inquest. 

7th.  Because  the  Statute  under  which  Yetta  Simon 
was  restrained  of  her  liberty  and  deprived  of  her  prop- 
erty is  in  conflict  with  Article  5  of  the  Amendments  to 
the  Constitution  of  the  United  States,  which  provides 
"Nor  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  Law"  and  in  conflict  with.  Article  11  of 
the  Amendments  to  said  Constitution. 

"la.  In  that  it  authorizes  a  citizen  to  be  deprived  of 
his  or  her  liberty  "without  due  process  of  Law." 

2a.  In  that  it  authorizes  a  citizen  to  be  deprived  of 
his  ov  her  property  "without  due  process  of  Law." 

"8th.  Because  Proceedings  in  Probate  Court  are  ir- 
relevant and  immaterial  to  an}'  issue  in  the  cause. 


570 

Opinion:    Wliite,  Justice: 

"'In  the  Proceeding's  to  inquire  into  the  sanity  of 
Mrs.  Simon  the  Avrit  which  issued  to  the  sheriff  was  evi- 
dently based  upon  the  folh)wing  clause  of  Section  231);^ 
of  the  Civil  Code  of  1886 :  Section  2393.  The  Judjie  of 
Probate  *  *  *  must  also  issue  a  writ  directed  to 
the  sheriff  to  take  the  person  alleged  to  be  of  unsound 
mind,  and  if  consistent  with  his  health  or  safety,  have 
him  present  at  the  place  of  trial.  The  invalidity  of  the 
Proceedings  in  the  inquisition  of  lunacy  which  formed 
the  basis  of  the  Proceedings  for  sale  of  property  is  in 
sul)stance,  predicated  on  the  contention  that  the  writ 
directed  to  the  sheriff  authorized  that  official  to  deter- 
mine whether  it  was  consistent  with  the  health  and 
safety  of  Mrs.  Simon  to  be  present  (page  4)  at  the 
trial ;  that  the  sheriff  decided  this  question  against  her, 
and  she  was  detained  in  custodv  and  not  allowed  to  be 
present  at  the  inquest.  This  latter  claim  is  founded  up- 
on the  return  endorsed  by  the  sheriff  on  tlu^  writ  direct- 
ed to  him.  At  the  trial  helow  there  was  no  offer  to  prore 
hi/  auji  form  of  eindeiicc  that  Mrs.  ^^'nnoii  iras  in  fact 
of  Hoand  mind  when  the  Proeeed'uif/s  in  Lanacij  icere 
instituted  or  that  slw  desired  to  attend  and  was  pre- 
vented from  attendinf/  the  hearimj,  or  n'as  refused  op- 
portunity to  consult  iritli  and  eniptoi/  co unset  to  repre- 
sent her.  The  entire  case  is  thus  solely  based  on  the 
inferences  which  are  deduced,  as  stated,  from  the  face 
of  the  return  of  the  sheriff'.  And  upon  the  assumptions 
thus  made  it  is  contended  that  the  Statute,  as  well  as 
the  Proceedings  thereunder,  were  violative  of  the  clause 
of  the  14th  Amendment  to  the  Constitution  of  the 
United  States,  which  forbids  depriving  anyone  of  life, 
liberty,  or  property  Avithout  due  process  of  Law.  It  is 
not  seriously  questioned  that  the  Alabama  Statute  pro- 


571 


vided  tliat  notice  should  be  <>iveu  to  one  proceeded 
Miiniiist  as  beinii  of  uiisoniid  mind  of  the  couteniphited 
trial  of  the  (]uestion  of  his  or  her  sanity.  .Is-  <i  nmttcr 
of  fact,  a  copi/  of  tltc  icrit  containing  notice  of  flic  <l(ifc 
of  the  Hcarin;/  of  the  Proceedings  in  Lunacjj  is  .sIioh-h 
hji  the  Record  to  hare  been  served  on  Mrs.  Pinion.  As 
early  as  1870,  Superior  Court  Alabama,  Fore  v.  Fo)-e, 
44  Ala.  478,  483,  held  that  the  service  of  tlie  writ  upon 
a  supposed  lunatic  Avas  the  notice  recpiired  by  Statute 
and  brought  the  Defendant  into  Court,  and  that  if  he 
failed  to  avail  of  such  matters  of  defense  as  he  might 
have,  he  must  suffer  the  effect  of  his  failure  to  do  so. 

The  contention  now  urged  is  that  notice  imports  an 
opportunity  to  defend,  and  that  the  return  of  the  sheriff 
conclusively  established  that  Mrs.  Simon  was  taken  in- 
to custody  (page  5),  and  was  hence  preA-ented  by  the 
sheriff  from  attending  the  inquest  or  defending  through 
counsel,  if  she  wished  to  do  so  in  consequence  of  the 
notice  which  she  received.  It  seems,  however,  manifest, 
as  it  is  fairly  to  be  inferred  the  State  Court  interpreted 
the  Statute,  that  the  purpose  in  the  C(mimand  of  the 
writ,  ''to  take  the  person  alleged  to  be  of  unsound  mind, 
and  if  consistent  with  her  health  or  safety,  have  her 
present  at  the  place  of  trial,"  was  to  enforce  the  atten- 
dance of  the  allegcMl  noii  compos,  rather  than  ro  author- 
ize a  restraint  upon  the  attendance  of  such  person  at 
the  Hearing.  In  other  words,  that  the  detention  author- 
ized was  simply  such  as  ^^■ould  be  necessary  to  enable 
the  sheriff  to  perform  the  absolute  duty  imposed  upon 
him  by  the  Law  of  bringing  the  person  before  the  Court, 
if,  in  the  judgment  of  that  otiicer,  such  person  was  in  a 
fit  condition  to  attend,  and  hence  it  can  not  be  presumed, 
in  the  absence  of  all  proof  or  allcfjation  to  that  effect. 
that  the  sheritf  in  the  discharge  of  his  duty,  after  serv- 
ing the  writ  upon  the  alleged  lunatic,  exerted  his  power 


572 


of  (letentiou  for  the  purpose  of  preveiitiug  her  atteiid- 
anee  at  the  hearing,  or  of  restraining  her  from  availing 
herself  of  any  and  every  opportunity  to  defend  which 
she  might  desire  to  resort  to,  or  which  she  was  capable 
of  exerting.  The  essential  elements  of  due  process  of 
Law  are  notice  and  opportunity  to  defend.  In  deter- 
mining whether  such  rights  were  denied,  we  are  gov- 
erned by  the  substance  of  things  and  not  by  mere  form. 
Louisville  c6  N.  7?.  Co.  v.  Schmidt,  177  U.  S.  230;  44 
L.  ed.,  747,  20  Sup.  Ct.  Rep.  230.,  We  can  not,  then, 
even  on  the  assumption  that  Mrs.  Simon  was  of  sound 
mind  and  fit  to  attend  the  Hearing,  hold  that  she  was 
denied  due  process  of  Law  by  being  refused  an  oppor- 
tunity to  defend,  when,  in  fact,  actual  notice  was  served 
upon  her  of  the  Proceedings,  and  when,  as  we  construe 
the  Statute,  if  she  had  chosen  to  do  so,  she  was  at  lib- 
erty to  make  such  defense  as  she  deemed  advisable. 
(Page  6.)  The  view  we  take  of  the  Statute  was  evi- 
dently the  one  adopted  by  the  Judge  ©f  the  Probate 
Court,  where  the  Proceedings  in  Lunacy  were  heard, 
since  that  Court,  upon  the  return  of  the  sheriff,  and  the 
failure  of  the  alleged  lunatic  to  appear,  either  in  per- 
son or  by  counsel,  in  order  to  protect  her  interests,  en- 
tered an  order  appointing  a  guardian  ad  litem  "in  the 
matter  of  the  Petition  to  inquire  into  her  lunacy;"  and 
an  answer  was  filed  l)y  such  guardian,  denying  all  the 
matters  and  things  stated  and  contained  in  the  petition 
and  requiring  strict  proof  to  be  made  thereof  accord- 
ing to  Law. 

It  is  also  urged  as  establishing  the  nullity  of  the  ap- 
pointment of  a  Guardian  of  the  estate  of  Mrs.  Simon, 
that  the  Proceedings  failed  to  constitute  due  process 
of  Law,  because  (1)  they  were  special  and  Statutory, 
and  the  Petition  failed  to  state  sufficient  jurisdictional 
facts;    (2)   a  Jury  was  not  impaneled  as  provided  by 


o< 


3 


Law;  mid  (3)  there  was  no  liiidiuj;  in  the  verdict  of 
the  Jury  or  the  order  entered  thereon,  ascertaining  and 
deterniinin.n  all  the  facts  claimed  to  be  essential  to 
confer  jurisdiction  to  appoint  a  Guardian.  But  the  due 
process  clause  of  the  14th  Amendment  does  not  neces- 
sitate that  the  Proceedings  in  a  State  Court  should  be 
by  a  particular  mode,  but  only  that  there  shall  be  a 
regular  course  of  Proceedings  in  which  notice  is  given 
of  the  claim  asserted,  and  opportunittj  afforded  to  de- 
fend against  it.  Louisville  &  N.  R.  Co',  v.  Schmidt,  177 
U.  kS.  230,  236;  44  L.  ed.  747,  750;  20  Sup.  Ct.  Rep.  230, 
and  cases  cited.  //  the  essential  requisites  of  full  notice 
and  an  opportunity  to  defend  loere  present,  this  Court 
will  accept  the  interpretation  given  by  the  State  Court 
as  to  the  regularity,  under  the  State  Statute,  of  the 
practice  pursued  in  the  particular  case.  Tested  by  these 
principles  we  accept  as  conclusive  the  ruling  of  the 
Supreme  Court  of  Alabama,  that  the  Jury  which  passed 
on  the  issues  in  the  Lunacy  Proceedings  was  a  lawful 
Jury;  (page  7)  that  the  Petition  was  in  compliance 
with  the  Statute,  and  that  the  asserted  omissions  in 
the  recitals  in  the  verdict  and  order  thereon  were  at 
best  but  mere  irregularities  which  did  not  render  void 
the  order  of  the  State  Court  appointing  a  Guardian 
of  3Irs.  Simon's  estate. 

Discussion  of  Simon  v.  Craft. 

The  case  of  Yetta  mmon,  Plaiutiff,  v.  John  N.  Craft, 
182  n.  S.  Supreme  Court  Reports  427,  argued  March  12, 
1901,  decided  May  2,  1901,  at  first  sight  appears  to  bear 
a  slight  similarity  to  Plaintiff's  case,  but  upon  investi- 
gation it  will  be  seen  to  be  essentially  different. 

First.  There  is  no  hint  of  fraud  alleged  by  the  Plaiu- 
tiff, :Mrs.  Simon,  concerning  the  only  Proceedings  which 


574 


occiiiTed  ill  the  matter  of  her  lunacy.  Per  contra,  Plaiii- 
tiff  not  only  hints  at,  but  proves  on  the  evidence — fraud, 
conspiracy,  and  perjury.  Fraud  destroys  everi/thing,  is 
a  ma.vini  of  Lair.  Fraud  cJiaiif/es  the  color  of  an  ap- 
parcntJij  rcf/alai-  Frocccdiiit/s  into  that  of  a  hiyhty  ir- 
refinlar  and  illcf/al  Frocccdin(/s.  The  above  is  drawn 
attention  to  in  the  words  of  the  learned  Justice  White 
as  follows  (pase  333)  :  "And  hence  it  can  not  be  pre- 
sumed, in  the  absence  of  all  proof  or  allegation  to  that 
effect,  that  the  sheriff,  in  the  discharge  of  this  duty" 
(the  arrest  and  detention  of  Mrs.  Simon,  ''necessary  to 
enable  the  sheriff  to  perform  the  absolute  duty  imposed 
upon  him  by  Law  of  bringing  the  person  before  the 
Court"),  "after  serving  the  writ  upon  the  alleged  luna- 
tic, exerted  his  power  of  detention  for  the  purpose  of 
preventing  her  attendance  at  the  Hearing,  or  of  restrain- 
ing her  from  availing  herself  of  any  and  every  oppor- 
tuiiitv  to  defend  which  she  might  desire  to  resort  to,  or 
which  she  was  capable  of  exerting."  Per  contra,  as 
^Ir.  Rosenblatt  says  in  his  complaint  in  Plaintiff's 
case  (  Uecord,  r>),  "and  during  the  pendency  of  the  said 
Proceedings  (before  the  Sheriff's  Jury  in  1899)  in  said 
Supreme  Court  of  New  York,  this  Plaintiff  was  at  all 
times  under  duress  of  imprisonment  and  absolutely  sub- 
ject to  the  orders  and  control  of  said  corporation  (popu- 
larly known  as  'Bloomingdale')  or  of  its  Superintendent, 
and  at  no  time  during  the  pendency  of  said  Proceedings 
was  the  Plaintiff  free  to  appear,  either  personally  or  by 
counsel  before  the  said  Supreme  Court,  or  any  officer 
or  officers  thereof,  or  any  Commissicmer,  Commissionei's, 
or  Jury  thereof  without  the  consent  and  direction  of 
the  said  Superintendent  of  said  Asylum,  except  upon 
the  order  of  said  Supreme  Court,  and  no  such  direction 
was  given  by  said  Superintendent,  nor  was  any  such 
order  of  said   Supreme  Court  made  or  given   by  said 


O<0 


Supirnie  Court,  aud  in  and  during  the  entire  Proceed- 
inii's  this  Plaintiff,  witli  the  know  ledge,  consent  ar.d  co- 
operation of  said  Supi-enic  Court,  and  its  Judges,  Com- 
missioners or  Agents,  was  forcibly,  wrongfully,  unlaw- 
fully and  in  violation  and  defiance  of  his  Constitutional 
rights  and  privileges,  deprived  of  the  power  and  oppor- 
tunity to  act,  write  or  speak  freel^^,  and  to  freely  com- 
municate or  consult  with  counsel  or  to  appear  or  attend 
before  the  said  Supreme  Court  or  before  its  Commis- 
sioners or  Jury,  or  to  confront  the  parties  who  had  in- 
stituted and  prosecuted  the  said  Proceedings  in  said 
Supreme  Court,  and  had  tlu^'ein  charged  the  Plaintiff 
Avith  lunacy  and  incompetency,  or  to  ascertain  the 
natur<^  of  the  charges  made  against  him,  or  to  hear  the 
testimony  ottered  in  supi)ort  Thereof  ov  fo  cross-examim' 
the  witnesses  hired  and  produced  by  the  T^etitioiicrs 
ther(Mn  to  give  such  testimony." 

SccoikI.  There  was  but  one  Proceeding  in  Mrs.  Simon's 
cas(\ 

I'cr  coiitrd,  tliere  were  two  in  plaintitt""s.  In  Mrs. 
Simon's  case  the  sole  and  only  Proceeding  was  legal,  in 
that  it  did  not  confine  the  Defendant  for  an  indefinite 
period  before  a  Jury  Trial  was  had  to  examine  into  the 
(|uesti(m  of  Defendants'  sanity.  Mrs.  Simon  was  taken 
into  custodv  Januarv  Slst,  1889,  in  consonance  with  the 
Petition  on  which  an  order  was  entered  f(n'  a- Hearing  on 
February  (Jth,  1881),  before  a  Jury.  Thereupon  a  Hear- 
ing was  had  before  a  jury.  Prr  contra,  in  Plaintiff's 
case.  Plaintiff  was  taken  into  custody  upon  a  final  Pro- 
ceedings, which  Proceedings  upon  their  face  recount, 
as  Mr.  I\osenblatt  says  in  his  Complaint  (Pec.  7),  "that 
said  order  of  ]March  10,  1807,  was  made  without  notice 
to  this  Plaintiff',  and  without  any  opportunity  given  to 
him  to  oi)pose  or  contest  the  making  thereof,  and  with- 
out permission  to  IMaintiff  to  appear  before  said  Court 


T>~() 


in  person  or  by  counsel,  but  on  the  contrary,  said  Su- 
preme Court  in  and  by  said  order  of  ^Marcli  10,  1897, 
expressly  directed  that  no  notice  be  sj;iyeu  to  the  plaintiff 
thereof  or  of  the  application  therefor."  Upon  said 
illeaal  Proceedin"s  Plaintiff  was  confined  in  duress 
of  imprisonment  at  ''Bloomingdale" — popularlj^  so- 
called— from  March  13th,  1897,  the  day  of  Plaintiff's 
arrest  and  incarceration  therein  until,  more  than  t^yo 
years  later,  the  Proceedings  before  the  Sheriff's  Jury 
in  1899  we^e  had.  That  said  1897  Proceedings  were  ut- 
terly illegal,  unconstitutional,  null  and  yoid  we  need  go 
no  further  tlian  said  case  of  ^^imoK  \.  Craft  to  proye; 

for  therein  the  learned  Justice  says  (page )  :     "The 

essential  elements  of  due  jn'ocess  of  Law  are  notice  and 
opportunity  to  defend."  Both  said  "essential  elements 
of  due  process  of  Law"  are  glaringly,  are  grieyously  lack- 
ing, upon  the  face  of  the  said  Court  Record  in  said  Pro- 
ceedings of  March  10,  1897. 

Now  let  us  examine  the  situation  under  which  the 
Proceedings  in  1899  before  the  Sheriff's  Jury  took  place. 
We  now  reach  a  partial  parallel  with  ^Irs.  Simon's 
case.  Said  second  Proceedings  in  1899  slightly  corre- 
spond upon  their  face — hui  upon  their  face  only — with 
those  of  ^Irs.  Simon  l)efore  the  Jury.  In  her  case  she 
was  held  by  a  public  officer  who  had  no  motive  in  with- 
holding frohi  her  the  opportunity  to  appear  and  be 
heard  in  defense  of  her  rights  before  the  said  Jury. 
She  at  no  time  alleges  that  said  sheriff  had  any  motive 
to  so  withhold  her,  nor  does  she  allege  that  he  actaaJhj 
<Jl(h  It  is,  as  the  learned  Justice  says,  mei'e  inference, 
mere  deduction  devoid  of  proof  or  even  allegation  of 
foul  ])lay  upon  the  part  of  said  sheriff.  Now  let  us 
examine  Plaintiff's  case.  Plaintiff  was  held  not  hij  a 
puhlic  officer  who  had  no  motive  to  icithhold  from  him 
the  opporfiinitif  to  appear  and  he  heard  in  defence  of 


Ol  i 


Ids  rights,  hut,  on  the  voittrarij,  hi/  the  paid  officers  of 
a  private  corporation,  popularly  called  "^Bloomingdale/' 
icJiich  said  private  corporation  was,  upon,  the  ahove  evi- 
dence, unlau'fullij  mulcting  Plaintiff  of  the  sum  of  over 
five  thousand  dollars*  per  annum  for  hoard  and  alleged 
Medical  attendance,  etc.,  and  had  so  mulcted  Plaintiff 
of  the  sum  of  over  ten  thousand  dollars  up  to  said  time. 
Moreover,  Plaintiff  liad  frequently  warned  said  officers 
of  said  private  corporation  that  lie  would,  upon 
his  case  jj;ettinL>-  to  Court,  bring  suit  for  heavy 
damages  against  said  corjjoration  for  false  imprison- 
ment. The  parallel  between  Plaintiff's  case  and  Mrs. 
Simon's  here,  therefore,  comes  to  an  abrupt  end. 
Moreover,  thai  the  retitioncr.s,  who  had  placed  Plaintitf 
in  said  Asylum  in  1807,  Jiud  a  mniive  to  kec])  him  there 
and  to  continue  through  a  third  party — the  falsely  al- 
leged Committee  of  IMaintitf's  person  and  estate,  to  be 
appointed  at  said  1899  Proceedings — had  a  motive  to  con- 
tinue tlie  said  mulct  of  Plaintiff's  property  by  said  Asy- 
lum /.v  proved  by  the  affidavit  of  said  Egerton  L.  W'in- 
tlirop,  Jr.,  of  said  Petitioner's  counsel,  in  said  1899  Pro- 
ceedings in  said  Decretal  Order  tiled  June  23rd,  1899, 
in  which  he  admits  that  the  reason  why  his  firm  were 
compelled  to  conduct  the  said  Proceedings  ''with  great 
care  and  much  attention"  was  hecause  I'luintiff  hud 
threatened  to  lake  legal  .sfep,s  to  pvor-ure  I'luintiff's  re- 
lease from  imprisonment.  Why  should  Petitioners  find 
it  necessary  to  conduct  said  Proceedings  with  "great 
care  and  much  attention,"  except  for  fear  that  Plaintiff 
should  have  an  opportunity  to  actually  have  his  day  in 
Court  and  expose  their  conspiracy,  fraud,  and  perjury, 
as  Plaintiff  is  about  to  do  now;  that,  in  spite  of  said 
Petitioners,  Plaintiff  has  a(hi<'ved  the  p(>ssibility  of  a 


*Twenty  thousand   before  his  escape.. 
(37) 


578 


(lav  in  Court.  Plaintiff  was  thus  between  two  fires, 
riaintiff"  was  thus  between  the  Petitioners,  wlio  had  a 
motive  to  prevent  his  getting  to  Court  for  fear  they 
would  be  shoAvn  up  thereby,  and  Plaintiff'  was  thus  be- 
tween the  said  ofJieers  of  the  said  asylum,  who,  with 
their  employers,  had  a  two-fold  motive  to  withold  him 
from  Court  (a)  lest  the  said  more  than  five  thousand 
dollars  per  annum  mulct  (page  5)  should  thereby  cease 
and  determine,  (b)  lest  Plaintiff"  should  bring  and  win 
a  heavy  damage  suit  against  them  for  false  imprison- 
ment. A  very  different  situation  surely  from  that  of 
]Mrs.  Simon  between  R.  G.  Richard,  her  Petitioner, 
against  wliom  she  at  no  time  alleges  foul  play,  and  the 
said  sheriff. 

Third.  In  strong  contrast  to  the  action  of  the  said 
New  York  Supreme  Court  and  the  said  Commissioners 
and  Jury,  upon  Plaintiff's  non-appearance  in  person  or 
by  counsel  at  said  Proceedings  in  1899,  the  Court,  in 
Mrs.  Simon's  case,  "in  order  to  protect  her  interests, 
entered  an  order  appointing  a  guardian  ad  litem/'  in  the 
matter  of  the  Petition  to  inquire  into  her  lunacy"  (page 
334),  and  moreover,  the  said  learned  Justice  emphasizes 
the  importance  of  the  said  citations  by  quoting  them  as 
above.  No  such  Guardian  was  appointed  by  said  New 
York  Supreme  Court  nor  by  said  Commissioners  and 
Jury  in  Plaintilf  s  said  partially  parallel  Proceedings  in 
1899.  The  parallel  between  Mrs.  Simon's  case  and  Plain- 
tiff's here  definitely  comes  to  an  end,  for  Mrs.  Simon, 
by  the  said  appointment  of  said  Guardian  ad  Utem,  did 
appear  by  said  Guardian  ad  Ufcin  before  said  Jury. 
AVhereas  Plaintiff  having  no  such  Guardian  ad  litem  ap- 
pointed, and  not  appearing  personally,  did  not  a])pear 
before  said  Commissioners  and  Jury.  The  opportunity 
which  was  afforded  by  the  Court  to  Mrs.  Simon  to  ap- 
pear by  counsel — by  said  Guardian  ad  litem — was  em- 


579 


phatically  not  afforded  Plaintiff.  Plaintiff'  therefore  did 
not,  as  Mrs.  Simon  did,  have  his  Constitntional  pri- 
vilei>e  of  due  process  of  Law  to  appear  and  be  heard,  or, 
in  the  learned  Justice's  words,  ''an  opportunity  to  de- 
fend." That  the  said  Guardian  ad  iitein,  the  said  Vaughn 
performed  his  duty  honorably  must  be  taken  as  proved 
since  Mrs.  Simon  has  at  no  time  criticized  his  per- 
formance of  said  duty. 

Lastlij.  The  learned  Justice  says  (pai-e  332)  :  "At 
the  trial  below"  (and  we  nmy  add  at  no  subse<iuent 
period)  "there  was  no  ott'er  to  prove  by  any  form  of 
evidence  that  Mrs.  Simon  was,  in  fact,  of  sound  mind 
when  the  Proceedings  in  Lunacy  (page  6)  were  insti- 
tuted, or  that  she  desired  to  attend,  and  was  prevented 
from  attending  the  hearing,  or  was  refused  opportunity 
to  consult  with  and  employ  counsel  to  represent  her." 
How  differently  that  sounds  from  the  affidavit  aforesaid 
of  said  Petitioners'  counsel  in  said  1899  Proceedings,  in 
which  he  admits  that  the  reason  why  his  firm  were  com- 
pelled to  conduct  the  said  Proceedings  with  "great  care 
and  much  attention"  was  hecause  FJaintiff'  hail  thnui- 
cned  to  take  Icfjal  steps  to  procure  his  release  from  im- 
prisonment. 

J II  conclusion.  To  quote  the  learned  Justice  (page 
333)  :  "As  early  as  1870  the  Supreme  Court  of  Ala- 
bama, Fore  V.  Fore.  44  Ala.,  478,  483,  held  that  the  ser- 
vice of  the  writ  upon  a  supposed  lunatic  was  the  notice 
recpiired  by  Statute  and  brought  the  Defendant  into 
C<mrt,  and  that  if  he  failed  to  avail  himself  of  such 
matters  of  defense  as  he  might  liave  he  must  suffer  the 
eff"ect  of  his  failure  to  do  so."  Such  service  was— />ro- 
rided  the  Uahauia  Statute  was  the  same  in  1870  as  in 
the  Simon  case — while  the  party  was  under  the  custody 
of  an  impartial  officer,  presumably,  to-wit,  the  sheriff, 
who,  presumably,  would  have  no  motive  to  throw  ob- 


iSO 


staclcs  ill  said  part^^'s  way  to  prevent  said  party's  ap- 
pearance in  i)erson  or  by  counsel  in  Court  to  defend  him- 
self. Upon  the  above  hypothesis  of  fair  play  upon  the 
l)art  of  the  sheriff,  said  party  would  have  as  fair  an  op- 
portunity to  procure  counsel  or  to  be  present  in  Court, 
or  l)oth,  as  an  alleged  criminal  in  the  custod}^  of  the  same 
shei'ift"  liad  by  law.  Not  so,  however,  in  plaintiff's  case, 
as  shown  above.  The  parallel  between  "the  service  of  the 
writ"  in  Airs.  Simon's  case  and  Plaintiff's  falls  to  the 
ground,  so  soon  as  one  examines  the  circumstances  afore- 
said. The  Alabama  Supreme  Court  knowing  that,  pre- 
sumably, the  sheriff'  would  have  no  motive  to  prevent  the 
l)arty's  access  to  counsel ;  no  motive  to  open  said  party's 
letters;  no  motive  to  forbid  said  party's  sending  letters 
unopened  and  unread  (page  7)  by  said  sheriff,  naturally 
presumed  that,  in  the  absence  of  charges  of  foul  play, 
of  course,  said  party  was  as  good  as  brought  into  Court 
by  "the  service  of  the  writ"  if  said  party  cared  to  go 
to  Court.  Not  so,  however,  in  Plaintiff's  case  where  the 
Avrit  was  served  when  Plaintiff  w^as  in  false  imprison- 
ment at  the  hands  of  parties  whose  rules  were  that  no 
mail  of  anv  kind  could  leave  the  said  Asvlum  without  be- 
ing  ])reviously  read  and  approvefl  of  by  the  said  officers 
of  said  private  corporation,  said  ''Bloomingdale,"  pop- 
ularly so-called.  In  Alabama  the  service  of  the  writ  pre- 
sumably <l()('.s  bring  the  Defendant  into  Court,  as  shown 
ab(>\-c.  In  New  York,  on  the  other  hand,  the  service  of 
llic   writ   ])resumably  does  not,   as   shown   above. 

The  only  points  made  by  Mrs.  Simon's  counsel  which 
ai)])ear  well  made  are  points  2nd,  4th  and  5th,  but  .said 
/loiiils  haAc  no  weight  under  the  said  circumstances, 
since,  as  has  been  said,  the  learned  Justice  pointed  out 
that  Airs.  Simon  iicrer  once  hinted  at  foul  plai/,  and  foul 
play  is  whixt  makes  said  points  of  interest. 

I'oiiif  2d.    "No  provision  made  in  or  by  said  Proceed- 


581 


iiit>s  whereby  said  Simon  might  be  present  at  the  in- 
([nest." 

Po'uif  -itJt.  "In  that  said  writ  left  it  to  the  jndgment 
of  shei'iff  whetlier  said  Simon  slionhl  be  aUowed  to  ap- 
])ear  at  incjnest." 

Point  olJi.  ''In  that  said  writ  authorized  the  sheriff  to 
restrain  Yetta  Simon  of  her  liberty  and  deprive  lier  of 
the  opportunity  to  l)e  lieard  at  the  inquest." 

Foul  play  is  not  only  hinted,  but  proved  in  Plaintiff's 
ease,  and  he  hangs  all  his  argument  in  his  brief  for 
notice,  and  opportunity  to  appear  and  be  heard;  and  the 
intervention  needed  of  a  Jury  before  a  person  ean  be 
permanently  deprived  of  libertj^  or  property;  and  the  il- 
legality of  trials  in  ahseiitia;  and  that  it  is  legally  neces- 
sary to  bring  the  person  before  the  Jury,  or  that  a  Com- 
mittee of  the  Jury  view  the  person  if  the  former  is  not 
])ossible,  Plaintitf  hangs  all  his  arguments  therefor  (page 
S)  upon  foul  play  in  his  special  case,  and  plaintiff  also 
brings  authority  to  support  his  said  ccmtentions,  and 
\\here  necessary  argument  by  analogy  supporting  Plain- 
tiff's claim  that  the  United  States  Constitution  iinpliefi 
that  the  privileges  of  alleged  lunatics  are  as  carefully 
safeguarded  as  those  of  alleged  criminals — and  arc  the 
same — and  must  not  be  ahrUh/ed. 

If  anv  further  argument  were  needed  to  excuse  the 
length  of  plaintiff's  Brief,  both  in  weight  of  authority 
and  exhaustiveness  of  argument,  it  is  furnished  by  the 
language  of  the  learned  Justice  (page  333),  which  con- 
clusively proves  that  said  learned  Justice  has  never  had 
presented  to  him  the  possibilities  of  fraud  and  the  temp- 
tation thereto,  and  the  unconstitutionality  of  the  per- 
mitting said  possibilities  of  fraud  and  the  temptation 
thereto  to  remain  upon  the  Statute  books  of  any  State 
furnished  by  ahrkh/infj  the  prirUcf/cs  of  alleged  ci-iniinah9 
where     alleged     Initaties     arc     citnrrriicd — possibilities 


ri82 


i>C 


wliieli  transcend  the  powers  of  the  iniaiiination  and  re- 
(piire  the  hard  lii>ht  of  fact  to  bring  them  before  the 
mind  of  a  tribnnal.  We  quote.  "The  contention  now 
urged  is  that  notice  importvS  an  opportunity  to  defend/' 
Til  is  i.s  imdemahJc.  But  the  hiwyer  for  Mrs.  Simon  went 
astray  in  attempting  to  infer — in  the  absence  of  allega- 
tion of  fraud  l)y  Mrs.  Simon  against  anybody  at  any 
time — that  because  Mrs.  Simon  was  taken  by  the  sheriff 
into  custody  she  "was  hence  prevented  by  the  sheriff 
from  attending  the  inquest  or  defending  through  counsel, 
if  she  wished  to  do  so,  in  consequence  of  the  notice  which 
she  received."  It,  of  course,  does  not  follow  ipso  facto 
that  because  the  sheriff  had  her  under  arrest  that  he 
therefore  prevented  her  from  defending  herself  by  coun- 
sel or  from  going  to  Court.  Here  is  where  the  said  lawyer 
went  astray  in  his  argument. 

The  learned  Justice  continues:  "It  seems,  however 
manifest — as  it  is  fairly  to  be  inferred  the  State  Court 
interpreted  the  Statute — that  the  purpose  in  the  com- 
mand of  the  (page  9)  writ,  'to  take  the  person  alleged 
to  be  of  unsound  mind,  and,  if  consistent  with  her  health 
or  safety,  have  her  present  at  the  place  of  trial,'  was 
to  enforce  the  attendance  of  the  alleged  iioii  compos, 
rather  than  to  authorize  a  restraint  upon  the  attendance 
of  such  person  at  the  Hearing."  The  above  .is  un- 
doubtedly "the  purpose  in  the  command  of  the  writ," 
but,  it  may  well  be  asked,  ichat  is  to  prevent  a  dishonest 
slier  iff  from    acting   otherwise?*      In   a   criminal   case 


*It  is  not  what  has  been  done,  or  ordinarily  would  be  done  under 
a  Statute,  but  what  might  be  done  under  it  that  determines  whether 
it  infringes  upon  the  Constitutional  right  of  the  citizen.  The  Consti- 
tution guards  against  the  chances  of  infringement."  Bennett  v. 
Davis.  90  Me.,  37  Atl.  865,  cited  in  Re  W.  H.  Lambert,  Cal.,  L.  R.  A. 
55  (1902)  supra.  And  again.  Earl,  J.,  in  Stewart  v.  Palmer.  74 
New  York,  supra:  "The  Constitutional  validity  of  Law  is  to  be 
tested,  not  by  what  has  been  done  under  it,  but  by  what  may.  by  its 
authority,  be  done." 


>8a 


would  it  be  heard  that  the  sheriff  derided  that  tlie  al- 
leged burglar  was  physically  uuable  to  atteiid  ('ourt 
aud  thereupon  judgment  Avas  taken  against  the  said  al- 
leged burglar,  and  he  was  tried  in  absentia  and  impris- 
oned for,  say  ten  years,  without  an  actual  bona  fide 
confrontation  of  Judge,  Jury  and  witnesses  upon  his 
part?  Wh3^  should  the  privileges  of  an  alleged  criminal 
throAv  more  safeguards  around  his  liberty,  more  for- 
mality than  those  of  an  innocent  alleged  lunatic? 

We  quote  the  learned  Justice  (page  332)  to  wit:  "At 
the  trial  below  there  was  no  offer  to  prove  by  any  form 
of  evidence  that  Mrs.  Simon  was,  in  fact,  of  sound 
mind  when  the  Proceedings  in  Lunacv  were  instituted, 
or  that  she  desired  to  attend,  and  was  prevented  from 
attending  the  Hearing,  or  was  refused  opportunity  to 
consult  with  and  employ  counsel  to  represent  her.  The 
entire  case  is  thus  soJeJij  based  on  the  inferences  which 
are  deduced,  as  stated,  from  the  face  of  the  return  of 
the  sheriff,  and  upon  the  assumptions  thus  made  it  is 
contended  that  the  Statute,  as  well  as  the  Proceedings 
thereunder,  were  violative  of  the  clause  of  the  14th 
Amendment  to  the  Constitution  of  the  United  States, 
which  forbids  depriving  anyone  of  life,  liberty,  or  prop- 
erty without  due  process  of  law."  Per  contra.  Plaintiff 
contends  upon  proved  facts  upon  Court  Records,  not  up- 
on "assum/ption  s/' 

At  the  trial  below — the  Proceedings  had  at  Cliarlottes- 
ville,  (page  10)  in  the  County  of  Albemarle,  in  the  State 
of  Virginia,  before  the  County  Court  of  Albemarle, 
aforesaid,  November  6th,  1901 — there  was  every  offer 
to  prove  by  every  form  of  evidence  that  Plaintiff  was,  in 
fact,  of  sound  mind  when  the  said  Proceedings  of  No- 
vember 6th,  1901,  to  inquire  into  Plaintiff's  sanity  and 
competency  were  had.  At  the  present  trial  there  has 
been  every  offer  to  prove  that  Plaintiff  was,  in  fact,  of 
sound  mind  when  the  Proceedings  in  New  York  City 


584 

were  instituted  March  lOtli,  1897,  aud  when  the  Pro- 
(reedings  in  New  York  City  were  instituted  in  1899, 
and  that  Plaintiff  desired  to  attend,  and  was  prevented 
from  attending  the  said  Hearings,  and  was  refused 
opportunity  to  consult  with  and  employ  counsel  to  repre- 
sent him. 


585 

CONCLUSION 

It  must,  therefore,  be  jipparent  that  the  phiiutitf-iu- 
eiTor,  ci  eitizeu  and  resident  of  Vir<j;inia,  one  of  the 
sovereign  States  of  this  great  Union,  wliose  sanity  has 
been  decreed  by  one  of  the  courts  of  that  sovereign 
State,  cannot  be  required  to  submit  the  cjuestion  of  his 
sanity  to  the  courts  of  the  State  of  New  Yorlv,  of  wliich 
State  he  is  not  a  resident,  but  which  State,  through  its 
courts,  is  wrongfully  withholding  plaintiff -in-error's 
property  from  him. 

We  have  here  diverse  citizenship,  and  the  case  is  one 
which  the  Federal  courts  should  take  cognizance  of, 
and  in  which  the}-  should  grant  full  relief. 

Here  we  have  two  judgments  rendered  by  courts  of 
equal  rank,  in  two  different  States,  but  the  later  judg- 
ment, rendered  by  the  court  of  Virginia,  declares  that 
plaintitf-in-error  is  sane;  and  his  conduct  during  the 
fifteen  years  which  have  elapsed  since  that  judgment  was 
rendered  duly  demonstrates  Ids  sanity  and  his  capacity 
to  manage  his  property  and  affairs.  He  also  respectfully 
submits  that  the  contents  of  this  brief,  composed  by  him, 
do  not  represent  the  work  of  a  madman  or  an  incompe- 
tent. On  the  other  hand,  he  subnuts  the  same  as  a  dem- 
onstration of  his  mental  capacity  and  qualifications. 

He  submits  that,  under  the  full-faith-and-credit  clause 
of  the  Constitution,  the  later  derree,  rendered  by  the 
court  of  Viiginia,  is  tlie  controlling  decree  and  entitles 
him  not  only  to  his  property  in  the  State  of  Virginia, 
but  to  his  property  in  every  other  State  of  the  Union. 

If  the  Uongress  should  enact  a  law  on  this  subject, 
specifically  declaring  that  the  later  of  two  judgments 
shall  be  the  controlling  one,  and,  from  its  date  super- 
sedes the  prior  judgment  of  the  other  State,  would  not 
the  Federal  courts,  including  this  great  and  honorable 


586 

court,  tlic  Supreme  Court  of  the  Uuited  States,  hold 
such  a  hiw  coustitutioual  and  enforce  the  same?  We 
respectfully  submit  that  such  a  law  might  well  provide 
as  follows : 

'*Th;it  lunacy  is  not  necessarily  permanent; 
that  in  the  event  of  successive  judiiuients  being- 
rendered  by  the  courts  of  different  States  regard- 
ing the  sanity  of  a  citizen,  the  later  judgment, 
from  and  after  its  date,  shall  be  the  controlling 
one  and  shall  supersede  the  other ;  and  that,  if  a 
person  has  been  adjudged  insane  in  one  State, 
ami  thereafter  is  adjudged  sane  in  another  State 
of  which  he  is  a  legal  resident,  any  property 
owned  by  him  which  is  withheld  from  him  by  the 
courts  of  the  former  State,  or  by  the  authority 
of  a  decree  thereof,  shall  be  surrendered  to  him 
upon  due  proof  of  the  later  decree  of  the  courts 
of  the  State  of  his  residence  holding  him  to  be 
sane.'' 

However,  we  respectfully  submit  that  no  such  enact- 
ment is  necessary.  The  Constitution  recpiires  that  the 
Virginia  decree  l)e  recogniziMl.  Plaintiff-in-error,  being  a 
resident  of  Virginia,  it  is  unreasonable  to  expect  him  to 
submit  liis  rights  to  the  courts  of  New  York,  in  which 
he  has  already  suffered  so  much;  and  the  (mly  tribunals 
ill  whicli  lie  can  seek  full  and  complete  justice,  without 
going  into  the  courts  of  the  State  of  New  York,  are  the 
great  Federal  courts,  at  the  bar  of  the  greatest  of  which 
he  now  stands  seeking  justice. 

KespectfuUy .  sulimitted, 

JOIIX  AraiSTlJOXG  Chalonek, 

Pro  8e. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 
Los  Angeles 

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